Woodland Hills personal injury attorney Barry P. Goldberg is a student and expert on all things “Uninsured” and “Underinsured.” In fact, Barry P. Goldberg has written extensively on Uninsured Motorist topics for years and is regularly contacted by accident victims and other personal injury attorneys —not just in Woodland Hills— to answer or discuss UM/UIM questions. Increasingly, questions are posed throughout California about UM/UIM arbitration procedures. Most procedural questions can be answered by an agreement at the outset of the Demand for Arbitration. This is “Part 2” of that discussion.
Once the case has been accepted for arbitration, Barry P. Goldberg recommends that counsel simply request in writing an agreement and signed acknowledgement that the proceedings will be governed by Code of Civil Procedure §1282, Insurance Code §11580.2 and California Rules of Court, Rule 3.823. Acceptance of these rules by both parties will provide for an orderly and predictable sequence up to and including the arbitration. In fact, once “proposed” it is fairly safe to govern all procedure according to those rules. Arbitrators love the predictable organization of these rules.
California Rules of Court, Rule 3.823, concerning rules of evidence at the arbitration hearing, is a must for any UM/UIM Arbitration! Rule 3.823 (b)(1) allows introduction of written reports and other documents without foundation. In most cases, this will allow the parties to “make their case” without a significant expense. With some limited conditions, an arbitrator must receive these documents into evidence, including expert reports, medical records and bills, documentary loss of income, property damage repair bills and estimates, police reports and similar documents. The proponent must deliver these documents to the opposing party at least 20 days before the hearing. The opposing party has the right to subpoena the author or custodian of the document and conduct a cross-examination.
Rule 3.823 (b)(2) allows a party to introduce witness statements at the arbitration in lieu of a live appearance if they are made under penalty of perjury and have been delivered to the opposing party within 20 days before the hearing. Because of the “penalty of perjury” requirement, counsel should work with the witnesses early on and not rely on a mere letter or handwritten statement that may or may not be signed under penalty of perjury.
The permitted witness statements are an excellent way to provide the testimony of supporting liability witnesses and other peripheral witnesses who may not be able to attend an arbitration hearing in the middle of the day. Although the opposing party may demand within 10 days that the witness appear in person, such a demand could actually “backfire” because the witness may be more motivated seeing that the opposing party will not accept his or her statement. In addition, the arbitrator may not appreciate the opposing party’s insistence on inconveniencing witnesses and wasting valuable arbitration time for supporting testimony that is essentially undisputed.
Finally, Rule 3.823 (b)(3) allows the use of a deposition transcript without the need to show that the deponent is “unavailable as a witness,” as long as the proponent provides 20 days’ notice of his intention to offer the deposition into evidence. Such notice should be provided for every deposition 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.
Woodland Hills personal injury attorney Barry P. Goldberg strongly recommends utilizing California Rules of Court, Rule 3.823 preferably by agreement. Even if an agreement is not finalized, counsel will probably follow the procedures in an abundance of caution. With some planning at the outset, a party can move towards an orderly and successful Uninsured Motorist arbitration.
