San Jose Attorney - Almaden Times Articles

Judging Credibility Of Witnesses Part Two

This week’s question:

 

I was pleased to see you answer the question that I emailed in regarding “He said” vs. “She said”.  Very interesting.  You said that part two of the reply would be in two weeks.  Can you please do that? 

 

/s/Teresa T.

Almaden Valley

 

Dear Teresa:

 

Thank you for following up on that topic, Teresa.  This is a very interesting topic.  And for those who missed this column two weeks ago, it dealt with credibility of witnesses as it relates to determining who is telling the truth.

 

There is a good deal of information on this topic when it comes to witnesses in court.  Frequently, a trial judge will read a standard jury instruction to the jury about witnesses and how to view witness testimony.

 

Often the trial judge will read an approved jury instruction to the jury as found in Judicial Council of California Civil Jury Instructions (“CACI” for short) #107.  It is entitled simply “Witnesses”.  It is quoted as follows:

 

“WITNESSES.  A witness is a person who has knowledge related to this case.  You will have to decide whether you believe each witness and how important each witness’s testimony is to the case.  You may believe all, part, or none of a witness’s testimony.

 

“In deciding whether to believe a witness’s testimony, you may consider, among other factors, the following:

 

(a) How well did the witness see, hear, or otherwise sense the things that he or she described in court?

(b) How well did the witness remember and describe what happened?

(c) How did the witness look, act, and speak while testifying?

(d) Did the witness have any reason to say something that was not true? Did the witness show any bias or prejudice? Did the witness have a personal relationship with any of the parties involved in the case? Does the witness have a personal stake in how this case is decided?

(e) What was the witness’s attitude toward this case or about giving testimony?

“Sometimes a witness may say something that is not consistent with something else he or she said.  Sometimes different witnesses will give different versions of what happened.  People often forget things or make mistakes in what they remember.  Also, two people may see the same event but remember it differently.  You may consider these differences, but do not decide that testimony is untrue just because it differs from other testimony.

 

“However, if you decide that a witness has deliberately testified untruthfully about something important, you may choose not to believe anything that witness said.  On the other hand, if you think the witness testified untruthfully about some things but told the truth about others, you may accept the part you think is true and ignore the rest.

 

“Do not make any decision simply because there were more witnesses on one side than on the other.  If you believe it is true, the testimony of a single witness is enough to prove a fact.

 

“You must not be biased against any witness because of his or her race, sex, religion, occupation, sexual orientation, or national origin.

 

And there is a separate jury instruction often read to the jury in civil cases that deals with expert witnesses.  CACI #221 is as follows:

 

“CONFLICTING EXPERT TESTIMONY.  If the expert witnesses disagreed with one another, you should weigh each opinion against the others.  You should examine the reasons given for each opinion and the facts or other matters that each witness relied on.  You may also compare the experts’ qualifications.

 

There you have it, Teresa, guidelines for resolving “He said” vs. “She said”.  I hope this information is helpful for you.

 

/s/Donald J. DeVries

Almaden Valley

 

 

Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com.  If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with “Almaden Times” in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120.  Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles.  The law is complex and constantly changing and varies from state to state.  So you should consult an attorney before taking any action that would affect your personal or business matters.

 

 

 

 

Guidelines For Resolving "He Said" Vs. "She Said"

This week’s question:

I have a real problem but I cannot discuss many of the details since the case involves a very good friend of mine and she just might read your reply. But it may come down to my word against my friend’s word. How does a judge or jury determine who is telling the truth? What if it really just comes down to “he said vs. she said”? If I do not have a supporting witness do I lose my case?

/s/Teresa T., Almaden Valley

Dear Teresa—

You may be surprised at how many cases come down to one person’s word against another. And each may be telling the truth from his or her perspective. This is such an important topic that I would like to break up the reply into two articles, one this week and a second one in my next column in two weeks.

Part 1 will be this week and it will focus on the issue of credibility. Part 2 will be in two weeks and it will focus on witnesses in general.

Let’s take the case of whether the traffic light was green or red when one of the vehicles entered the intersection. One person says under oath “red” and the second one says “green”. The judge or jury during the trial may place a lot of value on the witness’s credibility.

How is credibility determined? An important resource is the California Evidence Code, adopted by the California State Legislature. Part of the Evidence Code deals with considerations for evaluating the credibility of witnesses.

Evidence Code §780 provides as follows:

“Except as otherwise provided by statute, the court or jury may consider in determining the credibility of a witness any matter that has any tendency in reason to prove or disprove the truthfulness of his testimony at the hearing, including but not limited to any of the following:

(a) His demeanor while testifying and the manner in which he testifies.

(b) The character of his testimony.

(c) The extent of his capacity to perceive, to recollect, or to communicate any matter about which he testifies.

(d) The extent of his opportunity to perceive any matter about which he testifies.

(e) His character for honesty or veracity or their opposites.

(f) The existence or nonexistence of a bias, interest, or other motive.

(g) A statement previously made by him that is consistent with his testimony at the hearing.

(h) A statement previously made by him that is inconsistent with his testimony at the hearing.

(i) The existence or nonexistence of any fact testified to by him.

(j) His attitude toward the action in which he testifies or toward the giving of testimony.

(k) His admission of untruthfulness.”

Of course, the male gender reference in the material quoted above applies to the female gender as well.

So, it is safe to say that credibility is very, very important in the court’s search for truth. Sometimes it may seem like that is one of the most important functions of the judge or jury—to determine who is telling the truth.

And, although there may be a few exceptions, often there may be just one witness on any given point that may carry that particular point. In other words, it’s typically not a situation of two witnesses vs. one witness, so the two-witness point of the controversy wins.

In summary, Teresa, you can see that credibility is very important. And this ties in with witness testimony in general, and that will be the topic of Part 2 of this response in two weeks. You emailed in a very good question.

/s/Donald J. DeVries, Almaden Valley

Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with “Almaden Times” in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters

Donating Body Organs May Be A Good Thing To Do

This week's question: Although I am a little squeamish about this topic, I am thinking about donating some body organs at my passing. Just how does that work? What if I change my mind? How do I know that the organs will be used properly and not on the black market? How can I learn more about this topic?

/s/Rachael R., Almaden Valley

Dear Rachael: You have emailed in some great questions, Rachael. And I agree that this topic can be a little squeamish for some of our readers but it is a very important topic too. Several years ago one of our family friends received two body organs from an anonymous donor. I am sure our friend is alive today because of the priceless donation. Without those organs, I am certain he would not be with us today.

Let's try to address your questions one by one. First of all, you can specify which organs you wish to leave by stating that in an advance health care directive in California. This is allowed by Probate Code §4701. (That little § sign is legal shorthand for "Section".) I

t is also possible to make organ and tissue gifts by going online to: www.donatelifecalifornia.org. The home page of that web site states that the site allows you to sign up online to be an organ and tissue donor in California, and get this: "Your organ donation could save the lives of eight people, and your tissue donation enhance the lives of another 50 people." This is incredible!

You might also want to take advantage of the organ and tissue donation program when you apply for or renew your driver's license. A small sticker is then placed on the back of your driver's license to indicate that you are in fact a donor.

You can also make organ gifts in accordance with the Uniform Anatomical Gift Act, adopted in California as part of the California Health and Safety Code. I will use the shortened term "Uniform Act" from here on in this article. The Uniform Act has been adopted by 40 states.

Another way to make the gift of life possible by organ donation is during a terminal illness or injury of the donor, by any form of communication that clearly expresses the donor's wish. This would be in the presence of at least two adults, at least one of which is a disinterested witness. If the gift is made verbally, the witnesses can then memorialize the communication in writing under §7150.20 of the Uniform Act.

You can see that you do not need to have a formal legal document prepared by your attorney in order to be an organ donor. In California, the anatomical gift program is administered by the State Department of Health Services. It has oversight and regulatory authority with respect to the implementation of the Uniform Anatomical Gift Act.

A person could also document his or her organ gift by means of a tape recording in his or her own voice. If you change your mind about organ donations, you may amend or revoke the gift in one or several ways, including a signed statement, an oral statement made in the presence of two individuals, by means of a tape recording in the donor's own voice, or by any form of communication during a terminal illness or injury addressed to a physician or surgeon.

Under §7153 of the Uniform Act, only certain designated institutions or persons may become donees (recipients) of anatomical gifts and for clearly proper purposes. In all cases, if a person states in a health care directive that he or she does not wish to donate organs, those wishes must be honored. Almaden Times readers can read the entire Uniform Act if they wish by going to their favorite search engine and entering: "Health and Safety Code Section 7150-7156.5".

As always, you will want to review this material with your own attorney to see how the various provisions may or may not apply to your own particular situation.

/s/Donald J. DeVries, Almaden Valley

Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with "Almaden Times" in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.

Building Contractors Need State License

This week's question: I have a small business of kitchen and bath remodeling. Unfortunately, my license expired a while back and I have been too busy, despite the recession, to get it renewed. Since my business is so small, can I get along without a contractor's license for a little while? Can I just have the homeowners sign a waiver after I point out everything to them? I am bidding on a job right now and it may work out quite well for me.

/s/Bill B., Almaden Valley

Dear Bill- You might want to give your idea a second thought, Bill. I do not think that is a very good idea and may well be illegal in that most if not all building contractors need a license issued by the State of California, unless they are exempt.

It might be a good place to start if you go online and bring up your favorite search engine. Then enter "California State Contractor License Board" in the search box and hit "go". I did just that with Google and in .3 seconds there were 443,000 references available. In case you are not set up to use the internet, you might have a family member, friend, or relative help you.

There is a wealth of information available online and the California Contractors State License Board serves a very important function in our society. Homeowners can check the license status of contractors and contractors can obtain a great deal of useful information to help them get their work done with a proper license. Although I did not review all of those 443,000 entries, I would hazard a guess that none of them authorized a waiver like you asked about. In other words, the homeowner cannot excuse your not having an active, current, valid, license.

A recent court case pointed out the importance of a valid license very clearly. The case is called "White v. Cridlebaugh" and it was decided July 29, 2009, by the Court of Appeal for the Fifth Appellate District. The case arose in Kern County. In that case, the contractor was found by the court to have no valid license when the work was done. The court ruled that not only was the contractor forbidden to collect the balance due on his mechanic's lien of $13,561.62, the contractor was ordered to refund $84,621 previously paid to the contractor for labor and materials.

This was obviously a harsh result, but that's the law. In other words, the Court of Appeal held that the unlicensed contractor could not even recover the cost of his labor, services, and materials of over $84,000 in connection with the unlicensed work. He was ordered to pay it back to the homeowner because he did not have a valid state license when the work was done. The Court of Appeal also stated that licensing requirements and the penalties for violating those requirements are designed to protect the public from incompetent or dishonest providers of building and construction services. You can read the "White v. Cridlebaugh" case for yourself by going to your favorite search engine and entering the name of the case in the search box.

As always, you will want to read this case in consultation with your attorney who is your best guide as to how this case may or may not apply to your particular situation. I personally like to head for the Court of Appeal web site so as to avoid all of the distracting advertising and other material.

If I were you, Bill, I would take a little time out of my busy schedule and get that license up to date! Right away. Good luck with that process. I am sure you will find the time well spent. Not having a valid license at all times could be fatal to your business.

/s/Donald J. DeVries, Almaden Valley

Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with "Almaden Times" in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.

Respect Vs. Aggressive Representation May Be Tough Line To Draw

This week's question: I recently had a case in court that did not turn out very well. I am convinced that it was because my attorney at the time was not very aggressive. He was always so overly respectful that it really resulted in no representation at all. What I would like to know is whether there are written rules that attorneys must follow when it comes to respect compared with aggressive representation.

/s/ Andy A., Almaden Valley 

Dear Andy- You have raised a good question, Andy. Let me see if I can address it properly. From the moment your trial started out in the courtroom, you noticed that the bailiff said in a loud voice "All rise" when the judge came in. This is a very old tradition that is based on respect for the judge and the law. Just where one draws the line between respect and aggressive representation is often a matter of degree.

Your attorney can be very aggressive and do a great job representing you and at the same time be very respectful at all times. And yes, there are many written rules that attorneys must follow when it comes to respect within our system of justice.

One of those rules is California Business and Professions Code Section 6068. It provides in part as follows: "It is the duty of an attorney to do all of the following: (b) To maintain the respect due to the courts of justice and judicial officers." That general duty of respect is almost always a constant theme in our courtrooms. If you stop and think about it, I am sure you would agree that you would not like someone judging your case if you upset him or her. This just would not make sense. It might be somewhat like pouring gasoline on a fire.

So, your attorney walks a tightrope sometimes between respect on the one hand and aggressive representation on the other hand. And this respect aspect carries into other areas as well. For example, your attorney cannot knowingly file any court documents that contain false statements or allegations. And of course your attorney cannot file any forged documents with the court.

Business and Professions Code Section 6068(f) states that it is the duty of an attorney to advance no fact that is prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he or she is charged. If your attorney would make an unsupported assertion in court that the judge was biased toward you, it could result in contempt proceedings being brought. And an attorney may breach his or her duty by making insulting remarks about judges in briefs filed with the court of appeal.

I do not think I would try to argue that the judge acted "unlawfully" or "illegally" or had become a "party to the theft" of the client's property. More examples of improper behavior could be given, but much of it comes down to just plain old fashioned respect.

If you would want to read California Business and Professions Code Section 6068 for yourself feel free to do so by entering that information in your favorite search engine box and entering "go". It should be on your computer monitor is less than a second. And as I always add, you will want to discuss with your attorney how this particular provision may or may not apply to your specific situation.

/s/Donald J. DeVries, Almaden Valley

Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com. If you would like him to answer your question in his next Almaden Times column, you can reach him by email at don@almadenvalleylawyers.com, with "Almaden Times" in the subject line, fax at (408)268-6502, telephone at (408)268-9500, or mail at DeVries & Horowitz, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Mr. DeVries writes this column to provide you with general information about important legal matters affecting California residents-not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.