VIA FACSIMILE TRANSMISSION AND FIRST CLASS MAIL

Monday, August 3, 1998

Senator Quentin L. Kopp
2171 Junipero Serra Blvd., Ste. 530
Daly City, CA 94014-1980
Phone: (916) 445-0503; (650) 301-1721
FAX: (916) 327-2186; (650) 301-1797

Re: Senate Bill 73, authored by Kopp; 1997 Code Civ.Proc. § 998 revisions.

Senator Kopp:

I am a young attorney in my first year of practicing law. I recently took part in a civil trial in which the jury awarded my client an amount well above her CCP 998 Offer to Settle. However, to convince the jury of her injury in a low-speed impact, this office had to advance several thousands of dollars in expert fees to aid the jury in understanding the mechanism of her injuries. Opposing counsel and I are now wrangling over statutory and 998 costs. My fear is that if a great deal of the costs are disallowed, my client will not receive enough money to allow her to start a new line of work that will help her from injuring herself any further.

I am writing to inquire briefly about some of the new CCP 998 language, which was amended by the bill you introduced in December 1996 -- SB 73. Opposing counsel argues that the new 998 language only allows costs for experts during the preparation for trial and that the new 998 language, by certain deletions, excludes costs of experts incurred for trial appearances.

This reading does not make any sense to me, especially in light of the historic intent of Section 998. I do not believe that the Legislature intended that costs should be recoverable for pre-trial consultations with an expert, but that a party should not be able to recover the costs of actually calling that expert to the stand. Moreover, during my research on the Internet,⁽¹⁾ I found no committee discussions implying any intention to exclude costs of experts for trial appearances.

The revision in question is found in subdivision (d) of Code of Civil Procedure Section 998. Before the revisions of SB 73, Kopp, Section 998(d) used to read:

(d) If an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment, the court in its discretion may require the defendant to pay a reasonable sum to cover costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, the preparation or trial of the case by the plaintiff, in addition to plaintiff's costs.

(d) If an offer made by a plaintiff is not accepted and the defendant fails to obtain a more favorable judgment or award in any action or proceeding other than an eminent domain action, the court or arbitrator in its discretion may require the defendant to pay a reasonable sum to cover costs of the services of expert witnesses, who are not regular employees of any party, actually incurred and reasonably necessary in either, or both, the preparation or for trial or arbitration of the case by the plaintiff, in addition to plaintiff's costs.

In the case with which I am concerned, the Court has referred the matter of costs to a CCP 639(b) referee, who seems to find merit in opposing counsel's argument to exclude cost for our experts' trial appearances. Please let me know as soon as possible -- in writing, if you would -- if it was, or was not, the intent of the Legislature to exclude expert fees for trial appearances from recoverable costs pursuant to Code of Civil Procedure Section 998.

Very truly yours,
MACHADO & COUSINS
 

Troy Kevin Spears
Attorney at Law

1. I retrieved copies of all available documents associated with SB 73, Kopp, from the Capitol's web-site at http://www.leginfo.ca.gov/.