offer the deposition into evidence. Such notice should be provided for every deposi- tion transcript. In the unlikely case that the deponent fails to appear at the hearing for some reason, it may still be possible to obtain a favorable arbitration award. Once again, after receiving notice that
a deposition transcript will be used, the opposing party has the option to subpoena the deponent in order to cross-examine him or her in person at the arbitration. Once again, the arbitrator may not appreci- ate the opposing party’s insistence on inconveniencing witnesses and wasting valuable arbitration time for deposition tes- timony that is essentially undisputed and can be refuted by offering other portions of the deposition in rebuttal. In the right case, the insured may con-
sider using a videotaped deposition of a treating physician or other expert at the
arbitration pursuant to section 2025.620 (d) of the Code of Civil Procedure. Such a videotaped deposition is extremely cost- effective in the right case. In addition, rule 3.823 (b)(3) excludes application of sec- tion 2025.620. In other words, a party is not permitted to subpoena such an expert wit- ness to the arbitration. The videotaped expert deposition must be admitted with- out the opposing party having the opportu- nity to cross-examine the expert in person at the arbitration. At least 35 days before the arbitration,
the insured should always serve an offer to compromise under Code of Civil Procedure section 998. If the insured obtains a more favorable award, the insurer may be responsible for certain claim costs, including deposition costs, exhibit costs, and pre-judgment interest, as a penalty – even if it brings the total recovery above
the UM/UIM limits. (Pilimai v. Farmers Ins. Exch. Co. (2006) 39 Cal.4th 133, 139-42.) Counsel will be hard-pressed to explain why possible recovery of deposition costs, exhibit costs and prejudgment interest, would be a bad idea. In conclusion, with some planning,
agreement of counsel at the outset, and knowledge of the unique rules, an insured can effectively bring a UM/UIM case to arbitration quickly and efficiently. Barry P. Goldberg is the principal of
Barry P. Goldberg, A Professional Law Corporation, located in Woodland Hills. He has been in practice since 1984 and attended the University of California, Los Angeles undergrad- uate and obtained his law degree from Loyola Law School, Los Angeles. He is an experienced trial attorney and has extensive insurance cover- age experience. He has handled hundreds of UM/UIM arbitrations.
THE LAST THING ON HIS MIND IS HOW TO FINANCE HIS LAW FIRM.
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for Justice California Attorney Lending is a licensed lender and broker under the California Finance Lenders Law. © 2011 California Attorney Lending, LLC. All rights reserved. JUNE 2011 The Advocate Magazine — 65
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