Practice Pointers & Strategic Considerations

VI. Practice Pointers & Strategic Considerations

• Spoliation letters issued at intake. The day a serious case is signed, send written preservation notices to the defendant, its insurer, and any third-party custodian of physical or electronic evidence. Identify the specific items — vehicle, EDR, ECM data, surveillance video, maintenance records, security incident reports — and warn that destruction will be met with adverse-inference instructions under Evidence Code section 413, evidentiary preclusion, and discovery sanctions under Code of Civil Procedure section 2023.030. (Although Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1 declined to recognize an independent tort cause of action for first-party intentional spoliation, the Court expressly left these non-tort remedies in place.)

• EDR and ECM preservation in vehicle cases. Modern passenger vehicles overwrite event data recorder modules. Heavy-truck engine control modules ordinarily retain "last stop" and "hard brake" data for a limited period. Coordinate immediate preservation with a qualified forensic download specialist; do not rely on the carrier or law-enforcement download.

• Expert retention sequencing. Identify the disciplines required (accident reconstruction, biomechanics, human factors, life-care planning, vocational rehabilitation, economics, treating physician designation) and retain consulting experts under privilege early, converting designated trial experts only at the CCP § 2034.260 deadline. Front-load the life-care planner and economist on catastrophic-injury cases — their work product drives mediation valuation.

• Motion-in-limine strategy on Howell. Anticipate the defense MIL to exclude full billed charges and prepare a counter-package that (a) preserves the right to introduce paid amounts as past economic damages, (b) lays foundation for expert testimony on the reasonable value of future medical services without reference to billed charges, and (c) preserves the appellate record on any Howell/Corenbaum boundary issues.

• Section 998 offers, made and received. CCP § 998 creates significant cost-shifting and expert-fee exposure. Plaintiff-side practitioners should make a well-supported, good-faith § 998 demand early enough to accrue prejudgment interest under Civ. Code § 3291 on personal injury judgments. Carefully evaluate any defense § 998 offer; rejection followed by a less favorable judgment shifts post-offer expert fees and costs.

• Government Claims Act timing. When any public entity is potentially involved, calendar the six-month presentation deadline at intake and assume potential public-entity involvement until ruled out. The deadline runs from accrual, not from when the public entity's role becomes apparent. If the deadline is missed, file the § 911.4 application for leave promptly and, if denied, evaluate a petition for relief under Gov. Code § 946.6.

• Mediation positioning and structured settlements. Catastrophic cases typically resolve at mediation against a backdrop of policy limits, Medicare set-aside obligations, and lien resolution (Medi-Cal, Medicare, ERISA, hospital lien). Engage a qualified settlement planner and lien-resolution specialist before mediation, not after.

• Lien resolution and the made-whole doctrine. ERISA self-funded plans are not subject to the made-whole doctrine; Medi-Cal liens are governed by Welf. & Inst. Code § 14124.76 and the Ahlborn line of federal authority. Resolve liens before disbursing settlement proceeds; client trust-account exposure is acute.

• Comparative-fault apportionment at trial. Plead and prove the fault of nonparty actors when the apportionment will reduce the plaintiff's exposure to the defendant's affirmative defenses, and resist defense efforts to apportion fault to phantom or insufficiently-identified actors without competent evidence.

This analysis is for informational purposes only and does not constitute legal advice. Consult qualified counsel for advice specific to your situation. Attorney advertising.