Episode 5 – Stand, Fight, Win! LIVE: Real Lawyers, Real Answers – Keeping Money Away From In-Laws

[Music] Hello welcome to another episode of Albertson and Davidson live it's our December episode the last episode of the year that we're gonna do in 2018 and we want to thank you for joining us we have a few questions that we're gonna answer today and one of the ones that I think is probably the most interesting is how do you keep money out of the hands of your son-in-law or daughter-in-law I'm assuming that means that you don't like your son-in-law or daughter-in-law but that's the case then then that's that's something we're going to talk about today but first before we get into that let's talk a little bit about our beneficiary's corner topic which is a new case that we want to go over so our first segment beneficiary's corner where we kind of go over the latest and greatest of cases that we've been dealing with in our practice and today we're talking about expert witness and that's a subject that's near and dear I think to your heart Stewart it is and I'll introduce myself I'm Stewart Albertson part of Albertson and Davidson and I'm glad to be here for the last showing that we have before the end of the year and next year we're gonna kick these off hopefully a little bit more regularly than we did this year but we are in the beneficiary's corner right now and we wanted to talk a little bit about expert witnesses there's a case that an opposing counsel alerted me to yesterday and this opposing counsel is going to come up and several other issues we talked about today but he seemed very excited and agitated about the idea that we didn't quite grasp and understand how expert witnesses are gonna be used in California going forward and you know we Keith we've dealt with lots of expert witnesses through the years and the guy was making it sound opposing counsels making it sound like there's some earth-shattering pronouncement by the California Supreme Court that's gonna change everything we know about expert testimony and you're not gonna be able to use experts essentially any longer you're gonna have to go to specific fact witnesses to prove up each part of your the expert side of your case so how many expert witness depositions do you think you've done the course of your career I mean oh it's probably getting close to a hundred or so some neighborhoods right and then you talk about all the experts that we've worked at where it worked with and trials and all the work we've done with experts at trials so this is kind of an amusing story to me the fact that you know there's something earth-shattering but there's some basic information that you should know about working with experts right and that's one of the case the case that we're gonna look at today is actually let me flip to the name it's People vs Sanchez California Supreme Court so it's not that often that we're looking at Supreme Court decisions and let's see if I can find this site on here here it is two to three Cal oh no the the pellet case was two to three Cal app fourth one this should be 63 Cal four six six five there you go all right so and this actually is a criminal case so has nothing to do with civil or our civil area which is what we do but in terms of what it's talking about with experts it applies to civil cases too I suppose and so it's it's kind of an interesting case do you want me to kind of just some residue alright so I mean basically what you have here is an expert witness who's coming in and it's gonna open on whether or not the defendant is affiliated with gang but the way that the expert expert wants to prove that is by relaying statements that he heard from other people outside of court that's hearsay right I mean that's the hearsay 101 is well I heard somebody else say this when I was talking to him outside of court or I read it in a report that was prepared outside of court and now I'm gonna testify about it at time of trial you can't do that and so the California Supreme Court said well just because you're an expert does not mean that you can take these statements that were set outside of court and now all of a sudden repeat them in during trial because that's hearsay and just just the fact that an expert saying it doesn't make it not hearsay but in our way of thinking that really doesn't change much of anything does it it doesn't and I mean I before we get into the why it doesn't change a whole lot is what are the reasons that we don't want hearsay to come into a case and that's the problem here is hearsay is an adequate work statement and it's going by somebody else is now restating that in court right and we don't want to bring it in for for two primary reasons from where I stand point from what at least a court doesn't want to bring it in I want to bring it in as much as possible if I'm a trial but they don't want to bring it in because it's not trustworthy it's not trustworthy for me to say to go to court and say a year ago I heard Keith tell Kayla that XY and Z happened well we need to call Keith and Kayla and have them come and testify about what they personally saw or understood happening and so be cross-examined and be well and that's what that's the second point the first point is we want to make sure that it's a trustworthy statement so the best way to do it is go right to the person who said it and ask them is this what happened did you say this and then the second part you want is you want to make sure that that person when they're testifying is not only trustworthy but you have somebody called an opposing attorney who can cross-examine that person can challenge their memory of something so now you're testing the validity you're testing the veracity you're seeing if there's any holes and what they're saying that's right and so the opposing counsel who called me in an excited fashion yesterday to educate me and inform me about this earth-shattering case Sanchez you know we took a look at it yesterday you took a look at it and we quickly decided that this simply just establishes the current evidence code about what is admissible testimony of an expert witness and of course you can't get an expert to come in and and rely on what Keith wrote in a report about case specific facts and then come up there on the stand and testify as if those facts are true because number one we don't have Keith there so it's not trustworthy and number two we don't have a chance to cross-examine Keith to make sure that what he's saying is accurate so let's set this up in our practice area because where we get this a lot is more dealing with medical experts because we're doing lack of capacity undue influence we almost always need to have a medical expert somebody to look at the medical records and then give an opinion as to was there capacity was there not capacity so now let's say you have that expert on the stand and you're saying what did you review I you'd all the medical records now the medical records of most of what's in there is hearsay you can't just admit the medical records wholesale into evidence without it being here and that's been true from the beginning of time and it's because there's a lot of diagnose he's in there there's a lot of there's a lot of things in there that are assertions by somebody else outside of course so now anything that takes analysis when somebody takes an analysis and forms an opinion on that okay you cannot just host say I'll bring that in as evidence but the expert our expert can look at those opinions diagnosis all the medical things like blood pressure and whatever was in the medical records and then form their own opinion about it correct that is correct and now they come in and they say I've reviewed all this and based on this my opinion is is that as of this date this person had moderate to severe dementia and therefore lacked capacity to sign a contract or a trust or a will right that's correct so now let's say that you have this expert on the stand and you say well okay I hear that that's your opinion but tell me what did dr. Smith the treating physician what did he say in the medical reports now can the expert testify about that well they can if the opposing counsel doesn't say objection hearsay but if you walk through of every question if you've all have to the timely objection chances are you're gonna get a judge to sustain that and say next question and and that's why this is not an earth-shattering case in fact this is a sad case to think that first of all I'm not sure how an expert what type of expertise a person has to be a gang-related expert who can come in and look at police reports and determine if Keith is part of this gang I'd I think that's highly speculative I'm not a criminal lawyer I just don't feel like that is all that helpful in having the jury or the judge understand the complexity of the case and by the way that's what experts are for experts are to give us that 30,000 foot view of the issue in the case and let's let's clarify one other thing that expert if that expert were to come in and say my expert opinion is is that Joe did exercise undue influence over Jayne is that an expert opinion No it's a conclusion that's a conclusion that's for the jury that's for the judge and so we have these experts so that they can delineate to the jury or the judge whoever the fact-finder is in the case what are these technical these hyper technical issues in the case such as dementia Alzheimer's we want you the layperson to understand those so that you can make an informed decision about what happened in this case so maybe what it comes down to then is you don't need an expert to simply repeat something that somebody else has said in the medical records anybody could do that and it would be inappropriate for anybody to do that whether their expert or non expert write what you need an expert for is to be able to take all of this information and condense it down into a single or a set of opinions you know that I in my opinion this is what all of these facts mean all these facts mean severe dementia lack of you know and because of that they probably didn't know the extent of their property they probably didn't know that they were signing a trust or a will that then is the expert opinion but that's something that you can say and opine about without repeating the specific facts that are actually in the medical records that's correct and then the lawyer that informed us of this case this earth-shattering case as far as they were concerned I mean it's an important case I'm not not saying we shouldn't read it and understand it but it's not what he thought it was and that is that we can no longer use expert testimony and that was exactly what he told me on the phone and I said to him I haven't even looked at Sanchez and I tell you that's not the case but in any event when we look at these experts and we want to use them we can use them they are gonna come in they're gonna testify about things that need that a jury or a judge would need help to better understand so that they can make the ultimate determination in the case about whether the person truly did lack capacity or truly did not have an understanding and someone used an exercise of undue influence over them so instead of an expert opening that so-and-so did exercise undue influence over so-and-so which is a determination a judge or a jury makes what the expert says is after review the medical records I believe this person was susceptible to the exercise of undue influence whether that happen or not that's for you to prove to a judge or a jury but I've leaving that in the state that they were in the medical state they were in the mental state they were in I believe that they were susceptible to the exercise of undue influence and that's an opinion that you can give without relation you don't have to say the specific facts that are in the medical records to give that opinion that's right and and keep in mind there is one little trick or one little thing that opposing counsel need to needs to watch out for let's say that I get an expert up there and say did you review the medical records they say yes did you review any text or treatises they say yes they tell us which texts and treatises and then I get them to give their opinions and the basis for each one of those opinions and I sit down and the opposing counsel gets up and pulls the exhibit book over with the medical records in it which are never going to be evidence but opens them up and starts taking my expert at trial through the expert through the medical records guess what I get to do their game I get open to that I get to come back up and I get to now ask about the medical records word for word line for line because they've now opened the door so once they open the door so there's really only two ways that you're ever gonna get that hearsay to be repeated word for word through the mouth of the expert one is if the the other side opens the door on cross-examination or number two you ask him to do it you somehow slip it through without raising an objection I hear subjection from the other side which they probably should be making but maybe they don't well and that leads to one last point I'll make on this and that is how does this really work at trial I mean we want to test the other side to see what they know and I've I would say nine times out of ten the opposing counsel doesn't realize that you can't have your expert read the beneficial parts of the medical records okay so what I do when I get my expert up there I throw a question out there and test it and see and I was telling you earlier today when we were yesterday when we went over this case I was frustrated once because I was doing one of those test questions and I asked the experts to go ahead and read what the ultimate diagnosis was in that case on that particular line in the medical records and the judge goes oh I'm sorry you can't do that and I wanted to tell the judge hey your referee here you're not a player let the other side object but it's a judge's courtroom if they want to do that they can do that yeah but ultimately in most cases you're gonna be asking at least in deposition and that's one ways you do at a deposition like you do at a trial and the other side doesn't think there's anything different and and you go to town I'll tell you I'm sorry for talking so much but one last thing if you go against a former prosecutor somebody that did criminal work that's when you're getting it gonna get in trouble because they know the evidence code cold and they've seen it in different manifestations and so you're not gonna get anything over on them right but civil lawyers we don't get to trial that often and so even we are susceptible to some of those tricks that are out there well I think it's important that you know dealing with experts whether they're your experts or the opposing experts it's a whole separate almost specialty under the law you really kind of have to study it up and know what you're doing but but apparently expert testimony is still fine we're still okay on that we can still hire our experts and have them opine as to the diagnosis and good thing too because you could you imagine me not only could you not hand the medical records to the judge because it's hearsay evidence but how the heck is a judge gonna sort through thousands of pages of medical records and go oh I think that it's severe to moderate dementia or mild to moderate or whatever I mean it's not gonna happen well the answer that this opposing lawyer would give you if you have to actually go to the treating physicians and get the testimony from them but I will tell you that is a little bit like pulling teeth because most treating physicians number one they don't want their deposition taken because they're busy people right they're there they're not used to the process they're not like an expert that's paid who shows up to court regularly and they don't know the right things they don't even know that they would even know the right things to say and we're informing those opinions right and so while treating physicians they do have their place to take their depositions and have them be part of a trial they're not going to give the judge of the jury the teaching that a good expert will give so that you understand the issues when you're trying to make that ultimate decision in a case yeah well the experts valuable - and the fact that he teaches us he or she teaches us throughout the case and that helps us develop the strategy a lot of times - so I mean there's a lot of pros for experts when you have you and I've kicked ourselves many times for not hiring the experts sooner and the reason we don't is as lawyers it costs money to hire expert census but they're worth every penny because they usually send us in the right direction right no I agree all right let's go on to our next topic asked and answered so this is actually an interesting question that I received the other day and this is not the first time I've received this question and that is how can I ensure that if I leave my money to my child son or daughter that is not going to go to their spouse because I think that they're gonna get divorced or something or maybe they don't like their in-laws or son-in-law in law whatever it is how do you keep money out of the hands of people after you're deceased you can murder the spouse that's an option I think the law frowns on that you may go to prison for that but that's one option what are some other options Keith well the wonderful world to trust and you know the nice thing about so what we're about to talk about it is largely estate planning because it's what you do in your trust and your will and those sorts of things and they're discussions that you have to have we deal with them on the litigation side where either these things haven't happened but people are trying to do them after the fact or they're not following the trust terms so the great thing about a trust and the great thing about an inheritance for that matter is that in California of course it's community property state that means married couples have to share everything 50/50 generally speak what yeah no it's true okay all right except inheritances well there's other things two things you bring into the marriage things like that but the one big exception in our world is if you inherit property it is by definition your separate property well great so it comes into the hands of somebody who's married is separate property and then the question is what happens to it then and so if it gets mixed up with community property to the point where you can't tell what's what then it's going to be transmuted they call it and so then it's gonna lose that separate property character and become holy community property you won't be able to figure it out you won't be able to sort it out and so it's just kind of lost right so what that means is you have kind of two options one is if I leave money to my child if the child keeps it separate and they do their part to separate it out from their other assets and respected as separate property then it'll remain separate and it can't be used it can be divided if they get divorced okay well let me give it let me let me ask you an example then so let's say there's an apartment building and mom and dad own this apartment building mom and dad die and they give this apartment building to you and you would follow through with the analysis you just gave me and say that is if you put that in your name Keith Davidson and not in your lovely wife's name you would then have that a separate property true yes and let's say that it's worth two million dollars the apartment buildings two million dollar apartment building and now rents start coming in on that separate property asset okay and the rents let's just say the rents are twenty thousand dollars a month that come in that's the net earnings that come to you in that account that you've set up separately to get those rents what do we do with this so far the well you have to keep it separate and so that's usually where people run into problems right so the rents come in what do they do they put it into their joint account what their spouse but wait isn't isn't the definition of community property any earnings during the marriage no matter from what source derived are gonna be community earnings well this this comes to and believe me I'm not a family law lawyer but I can tell you that this comes down to whether or not those earnings are active like due to the labors of the spouse whether they're passive and so if you're getting earnings on a passive investment like stock dividends even rent on passive rental property I don't think that they would be community property but if you're getting those rents because that's your full-time job is managing those apartments and you're laboring on that now I think you probably do have an argument that those rents and income is community property and so the distinction between passive and active I suppose if you're going through a divorce ten years later that's gonna be the art of lawyering oh yeah whether someone's passive or whether something's active yeah so the spouse that has a property is like it was all passive I did nothing and the other ones like it's all active right oh yeah that's gonna be the problem and that's where really you the second option is the better option which is the parent could create a trust that keeps the assets in trust for that child but it kind of locks it away right so the child can't just have unfettered control over it it's locked away in this trust they can use it for health support maintenance education but they can't just have it willy-nilly they can't just go out and buy a Ferrari or something it has to be kind of separated out and that's how you would keep it separate and then if you actually had a separate trustee managing it now it's very easy to say well I didn't even manage it my trustee managed it or they hired a property manager or whatever they did and it wasn't me I just got a distribution every now and again from the trust right so I mean that's one way I guess to secure it but you know that's that takes a lot of extra work that's a holding of the trust has to be set up you have to have a trustee do that separate tax returns accountings if you want them I mean there's a whole layer of nonsense that goes into that and then can that asset or can that trust intro still be used for calculating spousal support absolutely I think you can because it's an available resource again we're not family lawyers we don't do that type of law but I think you could arguably say that's part of the your portfolio of assets that you earn money from as an individual and so we're gonna set spousal support based upon that amount and we've run up against that issue occasionally when we're dealing with you know our trust in will litigation cases we don't usually handle that part of it the family law part of it but but we've certainly been exposed to and we've seen that happen and it's always kind of a shocker right to the child to say what do you mean I have to include that right you know it's separate property well they're the separate property characterization is sup is different from how they calculate alimony and spousal support or whatever you call it what would be even worse is if you did have an independent trustee and didn't have the ability to sell that independent trustee what to do and they wouldn't make distributions to you but it was still counted against you as an ass no I guess also that I would be thinking about if if we had clients come in we don't do estate planning but if we had clients come in and ask us this if it was your parents coming in and asking and you and Christy been married I think 26 27 years I'd be like you know at this point she deserves it all so don't worry about it but if you have a situation where it's a second or third or fourth marriage and it's fairly new and there's maybe a significant age difference between the spouses well maybe this would be a good to at least put in place for a while along with what else I mean what's the other thing we can do not that we do those premarital premarital agreement yeah yeah those always go over well although yeah I always I mean people should definitely talk about these issues before marriage they probably should have premarital agreements and you know that's yeah that's a sensitive topic well I mean I think what you're getting at is is that there has to be two lawyers involved one for the husband one for the wife and both those lawyers are gonna fight for their respective clients and then the clients get involved and it's before wedding usually it's never well under a lot of stress yeah and the premarital is planning a dissolution of the marriage that you're about to enter into that's right and so I mean it's it's decidedly unromantic right it's a go into a wedding you know with the premarital but legally speaking it's fantastic and we highly recommend it as lawyers but you know you'll probably have something thrown at you right but anyway that's the dance and so the final option I guess option number three is just don't do it don't worry about it if you're gonna give off assets tears to your children that's what's going with it I thought you meant don't get married oh no I was gonna support you that's not what you're saying we have different viewpoints on that okay it's not the subject of today okay all right let's go on to our next topic and let's talk a little bit about today's practice pointer all right and this is a this is an interesting topic kind of I don't know does it go hand in hand with our first topic a little bit so how do you deal with empty threats so I don't know if you know this Stuart but lo lawyers tend to you know bloviate we talk a good game we like to puff out our chests we like to act far we like football players kind of before the game I don't know what the good analogy would be but we'd be like the football players that get ready for the game and then the game never happens the game gets continued that's right that's right in fact if I always thought if practicing law was like a football game you wouldn't have a single game during the entire season because the first game would be scheduled and then it would be continued and then somebody else would continue it and then it would go and be continued for six months and then at some point the coaches would just get together and they'd settle on a score out of court that's right and that would be that would be the game I'd be hit and then we take our Super Bowl ring hunts home and we show them to everybody and we're happy so yeah you know lawyers we tend to overstate things probably but because our firm what we've decided to do is hold each other accountable and we want to rise up we want to be good lawyers and so part of that was for years and years and years we took almost every case to trial that we could it's hard to get cases to go to trial but we wanted to do that and we did bench trials jury trials you name it arbitrations we've done it we've done it all and we did that because we knew that it would make us better lawyers and when you don't do that I remember when I was a lawyer that didn't have any trial experience the fear involved and going to trial is immense I'm not sure why it is because if you think about most football players they can't wait to get out there on the field and start playing where we lawyers we really fear trial and I think it's because there's so many things you have to master there's so many things you have to understand and of course you might think there's a presumption I'm sorry don't mean to catch up I think there's a presumption that if you lose trial you're a bad lawyer well that's part of it I think you don't want to lose but I think it's also just that you don't know what you don't know and you just are completely lost and so going into that the lawyer that plays the good game and makes you feel that they're the competent trial lawyer you're gonna be intimidated by them and so then you just don't go to try you settle everything before you know what you're 50 years old and you've been an expert at settling cases but you can't go to trial and so we run against lawyers from time to time that they they have to tell us about all the trial experience they have at every moment that they're breathing or talking right and what I've learned is those are the lawyers that really have not done a lot of trial work or at least not effective trial work but they want to spend their whole time they come to deposition and they want to tell you all their trial war stories they want to talk on the phone in front of you and talk about continuing this trial or I need to go do that trial and then they just talk about trial all the time and they even tell you that this case is going to trial we're not going to settle ever ever ever and so one way that we've dealt with those people is how what have we decided to do with those people well we just go trial yes because there's no other option and we're fine with that I mean we've been to trial many times we don't have a problem doing that and in my opinion it's usually the people who I find the most intimidating lawyers are the ones who don't talk yeah and the ones who are civil and you can just tell that they're thoroughly competent and they're they're confident what they're doing and they don't really talk about it that much going to trial or the trial experience because they know that their results speak for themselves that's right that's right so in this particular case that we currently have we have a lawyer that for the last six months has been telling us about what a fantastic trial lawyer he is I was at a deposition at his office and he's like leaves the door open as he leaves and he's talking to his assistant and he's telling her oh yeah I had that trial continue what am I gonna do because you know I just love to be in trial I mean he just would not stop with the trial stuff right and so I finally just told him look well I'm gonna concede that you're a very fine lawyer you're the finest trial lawyer we've ever gone against and we're sure you have you know copious amounts of experience and you're gonna kick our butts all over the place but we're gonna grant your wish we're gonna go to trial and so we're gonna go ahead and gear up and go to trial so and that's the first time we said that in the case we just wanted him to know yeah I it reminds me of this other case we had where I was at a mediation and the opposing attorney goes well if this case doesn't settle then I'm gonna start doing discovery because that's what I do and I think he was trying to say it in a way that was intimidating but it's like well doing discoveries what we all do when cases don't settle that's the next step when it doesn't settle you do discovery and you prepare for trial right so I thought that was a funny comment you know I'm gonna do discovery because that's what I do I mean I think the problem is like you stated it is that a lot of people are intimidated by trial and I think they assume that everybody else is too but you know the thing about trial is a good attorneys lose at trial great attorneys lose a trial bad Attorney's win at trial trial is chaotic and you go into the box it's like a boxing ring you go into it you give it your best shot you give it holiday that you have but what do you win or lose at trial I mean good lawyers are gonna win more often than they lose a trial I suppose but it's out so far out of your control and there's too many other factors you know and yeah you're dealing with the judge or a jury you're not sure how they're viewing the case how they're ultimately going to rule I think you have to approach it the way a great baseball pitcher approaches pitching agree if you're if you see a pitcher out there who just wants to win the game and that's all they can think about they're not gonna pitch very well you when you go out on the mound to pitch you have to think about pitching just execute each pitch the way that you know you have to every time and same thing with trial is that if you're a trial lawyer if you walk into trial and you execute on what you have to do at trial then you're gonna be fine and you're gonna be as good as you could be and whether you win or lose that's out of your control but you're gonna do what you do and so every case is gonna be resolved I guarantee you that and there's one of two ways that it'll be resolved it'll settle or it'll go to trial a few cases in our area have summary judgments or weird things like that it's pretty rare in our area though so I mean when somebody starts talking about I want this to go to trial well yeah that's that's one of two ways that it will settle or it will be resolved and so it'll either settle or go to trial so every time I think we hear what we're gonna take this case to trial yes that's one of two options we agree right and so in this in this particular issue here with this current lawyer we simply said fine we'll go to trial and we started gearing up for trial well we recently got a phone call from this lawyer letting us know that he would like to mediate the case now of course well and you know and this is just you know I'm not gonna be too hard on him because you know this is this is how it works right but we know that when we try to take every case to trial we were not successful more times than not and the reason for that is there's so many ways cases settle there's so many ways it can be by agreement at the parties if it's not agreement of the parties there's gonna be multiple mandatory settlement conferences right where do they at least it gets the parties together in the same ballpark they're talking maybe they don't agree there's gonna be private mediation there's going to be definitely if you're gonna go to trial before the trial there's gonna be chambers conference and I that I promise you is not for you to introduce yourself to the judge that's for the judge to saddle that case give one more crack at it and then of course the one case that we had where it went the furthest we did a three-week trial in San Diego and at the end of that three weeks the judge asked all the lawyers to come into the chambers and do his chambers and he basically asked each one of us to lean forward and started hitting us in the head saying what are you what are you guys doing here and he was like four o'clock in the afternoon and he said I'm sending you sending you out to mediation with a good friend of mine he you know we didn't have to go find a mediator he was a good friend of the judge in other words he's gonna talk to the judge about what happens at mediation and even though he may not suppose to but that's probably what's gonna happen and we sent out and I think at 3:00 or 4:00 that morning that case subtle but I was after three weeks of trial from 4:00 in the afternoon you mediate until 3:00 in the morning correctly you got a cell we got a settlement and and so and that was one of those cases - or the lawyer on the other sides of this case will never settle no how no way ever and of course it ends up settling so do you think most clients are pretty surprised at how much pressure the judges put on the parties to settle I mean judges want people to resolve these cases based on a trial they do and I'll give you an example of a current court at the Riverside County Superior Court which I have a lot of respect for but they're known for literally getting the brass knuckles out and they tend to beat up plaintiffs more than they do defendants because they'd want these cases to settle and so plaintiffs lawyers are constantly complaining about Riverside County because they go in and the judge just shatters the client who's not sophisticated where the defense they've got a claims adjuster they're usually or somebody that's somewhat sophisticated with litigation and the cases end up settling and it's just a matter of time so in any event what how do we deal with empty threats I feel like if you run towards them right and just keep doing your job doing those pitches as you said just keep pitching the ball concentrating one throw at a time good things will happen for your case and even if you really really want your case to go to trial there's about seven out of ten times even when you really want it to go it's not gonna go for very factors the case will settle outside of trial and settlements aren't bad I mean I think that's the the final point I want to make settlements are not bad settlements are a good thing in most cases you're gonna do very well in the settlement if you've set the case up properly and you might be even do far better in a settlement that you will at time of trial so I don't want to leave the impression that settlements are bad but I think the funny part is having a lawyer say I'm never gonna settle well you don't know don't ever say never in any lawsuit because there's a lot of things that are gonna happen before this thing gets resolved that's right and we've always said I've changed my view I remember as a young lawyer I didn't want to be the first one to raise mediation I didn't want to be the first one to say hey we'd like to talk settlement yeah and now I do routinely I say if you guys are open for mediation we're always willing to go and sit down and talk I do think there is something to getting the written discovery done and getting a few of the depositions done so that everybody's educated on the case right yeah including ourselves but once that's done there's no reason not to go to mediation and as we've said several times when both parties are a little bit unhappy and that's hard to gauge but when you usually can see it you know what when you see it when both parties opposing one another are both a little bit unhappy and you see the mediator saying guys this is something you need to take it's generally the good result for the case now clients don't have to do it and if they don't want to then we'll go to trial but in you know nine times out of ten mediation makes sense to at least go to and see if you can get something see if you can get something that's right if you have a good settlement offered to you take it there's no reason there's no shame in taking a good settlement right and how many times have we gone all the way to trial and finished up a trial and a client high fives a success man that was a fantastic experience if we won do they do they say I love that trial it's painful it's well because trials are chaos I mean and that's not that's not to denigrate our system it's just it feels chaotic because it's out of control it's outside of your control and so anyone which brings us to our last topic actually and this folds in well with our closing argument and in today's closing argument we are gonna be talking about our next book coming out which is called your lawsuit and Stewart and I have written yet another book this is gonna be our second book that we're releasing about your lawsuit and the thing that I'm excited about what this book is it's going to give our clients and anybody who cares to read it a hopefully simple to read overview of the litigation process from start to finish and I think people are surprised right when they enter the the litigation process the court process I think people are really surprised at how our system works in reality versus how they think it works based on watching television and movies and so our hope is is to be able to show people kind of each step of the process and generally kind of how it works which kind of goes into what we were just saying which is a lot of people are surprised about the pressure to settle whether or not settlements are good things or not you know I think there's a lot of misconceptions about the litigation process you know everybody wants to be the one who is the bulldog and fights hard and there's certainly a place for that there is a time when you do have to fight hard and I think we do that well but there's also a time when you have to potentially negotiate a settlement and get what you can out of the case well and the reason I like this book Keith is because it does lay out a road map to the typical litigated matter and I can think you when I was a younger attorney I you know they don't teach you how to how to dialogue with clients and I remember several times we would go to the very first hearing in a case and it usually is some type of community here the judge just wants to know who the parties are and how long do you want for discovery and you know come back at a 90 or 120 days and there were several times I had clients say did we win and it's like oh no this is just the beginning of the case and so I think it's important for them to understand how cases are filed what those first few hearings are gonna be like discovery how that's just a long haul it's not funded it's not usually not a whole lot of fun but at least it's both sides depositions those types of things I think those are all important for us to understand and how a lawsuit in California unfolds yeah and we really do walk through it on phases so we break it down into the different phases of the lawsuit the first phase being the pleading phase where all the paperwork gets prepared and filed with the court we talked about the discovery phase we do talk about settlement and and the mediation and mandatory settlement conference phase and all that and ultimately trial if you get there so we kind of walked through each each phase and we kind of explained this is how it works and this is what you should really what it comes down to is what should you expect right and this really came out of we used to have a series of handouts that were we I used to always call them or what to expect handouts so what to expect at your deposition what to expect and written discovery what to expect and your lawsuit whatever and so that really was the genesis of this book and we're taking it kind of to the next level so this is really what can you expect and I think hopefully the underlying message in the book that we tried to put in there as we were writing it is you have to be resilient you have to be persistent and you have to be flexible and I was just gonna say that last one flexible flexibility and being a trial lawyer and being a client in a lawsuit those are some really nice attributes to have because there's one day where you're gonna be headed one direction and the next day you may head somewhere else and we do hear clients from time to time say but you told me it would be this we're doing the best we can we don't have a crystal ball but we have to be there has to be some fluidity and what we're doing here we have to be able to go left and right when the winds dictate that I think you're you're taking some you're taking some sailing lessons and I think you told me something that was awesome and that is you sail the winds that you get right yeah not the winds you want not the ones you hope for that's right and see the same thing in litigation there's winds and litigation and and what we've said to clients and I think if there was if we were going to nutshell this it's that litigation ism is a marathon yep it's one step in front of the other and if you sprint you will die you will not make it 26.2 miles if you start sprinting right and so while we do want to work quickly and we want to work fast without the method we've come up here in our firm that's just a little faster than molasses right right and makes the other side very uncomfortable but we definitely want to be looking at this as a let's just keep putting one foot in front the other and by the way your best day is never as good as you think it is yeah but the converse is true your worst day never as bad as you think it is that's right well and one day the evidence looks good and the next day you learn new facts and you think it's terrible and good terrible good taro although it's funny how I even said that it's good and terrible it's not great and terrible you know that the positive side never seems as good as the negative side that's right that's right but anyway that's that's the nature of it so the next book your lawsuit will be officially released for publication on February 7th is the date we set for it be available on Amazon it will be available on Amazon and we are actually putting out as a pre-order which it should be ready for pre-order by January 4th and if you want to be part of our launch team you can send an email either to myself Keith at Al Dave law comm or to my assistant Kayla at al dev law comm and Kayla has learned a whole bunch about how to do books now because she's been helping us both with the first point so Kayla's name it's ka y la @ al Diablo comm shoot us an email say that you won't be part of the launch team you'll get a free copy of the book you'll get a chance to join us on a live presentation we're going to go live with the people who are on our launch team and I answer any questions and take any comments that they have and then they'll also be part of our our kind of behind the scenes group that will help us get this book out and out in the world so until then I want to wish everybody Merry Christmas and a Happy New Year and happy holidays and everything else that comes along with that and I guess we'll be picking up again after the new year yeah that's right happy Holidays to everybody and we'll see you in January thank you. 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