BRODIE/WELCHER APPELLATE EFFORT SHOWS
CAAA TEAMWORK
By: Mark Gearheart, Esq.

On April 3, 2007 the California Supreme Court heard oral argument in the Brodie/Welcher cases. As CAAA members know, these cases involve whether newly enacted Labor Code Section 4664 represents the repeal of “formula A” apportionment and whether the new apportionment regime requires that the employer pay for the disability directly caused by the injury (formula C). The Courts of Appeal have gone both ways on this issue, and thus it has found its way to the Supreme Court.

What may be less apparent is the massive effort by CAAA members to ensure that the applicant’s side was well prepared for oral argument and ready to clearly articulate our primary points in the intellectual cross fire of Supreme Court argument.

Of course, these cases involved the usual activities prior to reaching the Supreme Court: client counseling and case preparation, discovery, trial, reconsideration and work in the Courts of Appeal. The cases were consolidated when they reached the Supreme Court. The briefs submitted to the Supreme Court, including all of the Amicus briefs, measure 11 inches when stacked together.

The injured employees in these consolidated cases are represented by Skip Tescher, Roy Otis, Sue Borg and me. The CAAA Amicus Committee has been very active in these cases with numerous briefs and replies authored by David Froba.

In the weeks leading up to oral argument, Tescher, Otis, Borg, Froba and I participated in conference calls at least twice a week to review legal issues, strategy and discuss responses to both defendants’ and defense amicus briefs. We were joined in many of these calls by past President and Amicus Committee Chair William Herreras who contributed his vast appellate experience and insight.

On Saturday, March 24, 2007, the applicant attorneys met at the Gearheart & Otis law firm in Pleasant Hill and spent three hours debating strategy and positions in anticipation of oral argument. Bill Herreras participated in the entire three hour meeting via speaker phone.

On Monday, April 2, 2007, the Brodie/Welcher team assembled in Los Angeles to continue their work preparing for the April 3, 2007 oral argument. It had been determined that Sue Borg, David Froba and I would present the oral argument to the Supreme Court on behalf of the applicants’ side. CAAA helped arrange for a mock oral argument on the afternoon of April 2, 2007. Many CAAA members donated their time, on very short notice, to assist this effort. Sherry Grant, Ron Feenberg, Marvin Shapiro, Marguerite Sweeney, William Herreras, Tom Martin and Merle Rabine reviewed briefing materials and then sat in the role of Supreme Court Justices at the mock argument. Skip Tescher and Roy Otis provided coaching and together with the “justices” critiqued the performance by our presenters.

On Tuesday, April 3, 2007, the team assembled and walked together to the Supreme Court building in Los Angeles. The courtroom was packed, and the audience overflowed the available seating. Overflow attendees were accommodated in a separate conference room with closed circuit television to view the oral argument.

It is always risky to predict how a court will rule in a particular case. We have seen the Courts of Appeal divided over this apportionment issue, and it is difficult to say what the Supreme Court will do. However, we can all be proud of the tremendous effort put forth by CAAA in this fight for justice for injured workers. CAAA was instrumental in arranging and paying for the conference calls and facilitating the mock argument. The selfless contributions of time and expertise by many who were not directly involved in the cases upholds the best traditions of our organization. Regardless of what the ultimate decision may be there can be no doubt that everything that could be done to advance the cause of injured workers on this issue was done. It remains to be seen whether the Supreme Court by its decision will advance or impede the cause of justice.