Cal/OSHA Trials Unpacked: Tactics, Testimony, and Preparation Tips

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Kevin Bland: Hello everyone and thank you for joining us for the Ogletree Deakins safety podcast today. My name is Kevin Bland, and I’m a shareholder in the Orange County California office. Here with me today is my esteemed colleague, Karen Tynan, a Sacramento shareholder and the chair of the Workplace Safety Practice Group here at Ogletree. We are talking about Cal/OSHA attorney trial strategies and tactics today that we see and experience. So, I think this is a pretty good topic because let’s face it, more and more cases seem to go to trial since the audit and since there seems to be settlement block coming, right? So, Karen, tee us up into this-

Karen Tynan: What we see on the other side.

Kevin Bland: Yeah.

Karen Tynan: So, when you go to trial against a Cal/OSHA attorney, you’re either going to be under the Northern California or the Southern California office. And it varies on the other side. I want to start out saying that some, let’s say younger attorneys or someone transfers from another department in California or starts their career at Cal/OSHA, they’re going to get some administrative trials pretty quick. Or you can be across the table from a very experienced attorney. You don’t know who you’re going to get drawn for the assignment, but it’s going to get assigned either Northern California or Southern California. But the takeaway is experiences vary. You could be up against someone in their first trial or their hundredth trial.

Kevin Bland: Right, exactly. You know what’s interesting when we’re talking about this experience level of the attorneys on the other side and I’m not saying any of them are good or bad attorneys. Most of them are good attorneys as attorneys go. But here’s the thing that I find any of my clients and your clients probably are like, when we’re talking about who’s on the other side, would you rather…and I’ll say, “Well, it’s a new one.” They go, “Go great.” Well, it’s not.

Karen Tynan: No.

Kevin Bland: And when I say it’s not great, it just lengthens the time. And also, I find the seasoned attorneys will look at the case coming up to trial and really narrow the issues, be efficient with what we’re litigating. I’ll give you an example. I was in trial and we almost got done in a day, which these days are unheard of.

Karen Tynan: Exactly.

Kevin Bland: And we can be very efficient and staying on point. To contrast that, I got a case where we spent almost three full days on just the inspector. It was one single general, on single general IIP violation. We got our turn on day four morning. I spent about 45 minutes or an hour on my only witness in the whole case after three days of the other side. And of course, we got the order and the citation was dismissed, right? We won. But the point being is quality over quantity. Sometimes I think the new ones get–

Karen Tynan: I prefer someone with a little more experience because you can also do better stipulations and streamline your trial. They’re going to understand what evidence is important, what photos are important. We’re not going to have to deal with 30 photos in the evidence. We’re going to do four.

Kevin Bland: This–

Karen Tynan: You going to tell a war story?

Kevin Bland: Well, it’s not a big war story, but I’ve had the case where I have said, “Okay, the photos, we know the inspector took all the photos. We knew we took them at the inspection.” And I’m not worried about laying foundation. “Is this a photo you took?” And all that. That could save…if you have 30 photos, you don’t need 30 photos, but that’s it. And so, I said, “I’ll stipulate for admission.” Well, then it scares them. And they don’t want to do it. Or the judge usually will talk them into, “Hey, we’re just saying it.” And I said, “So you don’t have to lay any foundation, you just get to whatever the point is on it.” And then they go through the 30 photos, laying foundation and this is where inexperience comes in. Never ask any substantive questions.

Karen Tynan: Just lay the foundation.

Kevin Bland: “Did you take this photo?” “Yes, I took this photo.” “Was it at the time of your inspection?” “Yes, it was at the time of inspection.” “Move to admit.” What’d you bring the photo in for?

Karen Tynan: What’s it show?

Kevin Bland: What’s it show?

Karen Tynan: Exactly. So, I want to ask you, that was kind of our broad strokes about some things we see with Cal/OSHA attorneys on the other side. What do you think of opening statements where Cal/OSHA attorneys make an opening statement? I see sometimes there’s a bit of overpromising in opening statements. What do you see on the other side?

Kevin Bland: Yeah, I agree with that. And also, sometimes I think, and this is where I get frustrated, back to Law School 101, you have an opening statement, and you have a closing argument. You do not have opening arguments.

Karen Tynan: There you go. You said it, right?

Kevin Bland: Yeah. And I find that that gets confused sometimes with the newer attorneys and they’re trying to argue what the evidence is and why it should be so good when as opposed to… “First witness, Mr. Tom Daniel is going,” and that’s a fictitious name, by the way, “that is going to testify. You’ll hear him testify that he inspected the site every day and he documented those inspections once a month, Your Honor,” whatever. Instead, it’s like we have an IIPP and they didn’t comply with the IIPP and then go on to the argument, “because this and because that,” that’s not an opening statement. To me, the opening statement should be, and this is what I prescribe too often, the judge is sitting here blind because they don’t know anything about the case. You want them to know what you’re going to talk about.

Karen Tynan: Tell them what you’re going to tell them.

Kevin Bland: Yeah, the story. Right. Tell them what…that’s Law School 101, right? Tell them what you’re going to tell them and that way they have an idea because if you don’t do that, they could be lost. You could have a witness or two witnesses in, and they still don’t really know what the heck’s going on in the case, right?

Karen Tynan: Right. Which machine was important? I recently had a pre-hearing conference with Judge Avalar, Southern California judge. She went over, she said, “Here’s what I want you to cover in your opening statements.” And she basically said everything you said. “If it’s about a particular machine, tell me what that machine is and what we’re here for. Tell me who’s who in the witness list. Who’s a supervisor? Who was there? Who’s the injured employee?” She said, “I need a roadmap to the case. I don’t need a bunch of kind of emotions and argument to start the case.” And I thought to myself, “Well, okay, good with that.”

Kevin Bland: Okay. And I don’t know how recent that was, but I had a case before her where the whole thing was arguing. I usually don’t object during opening statements. It’s opening statement, but I had to because of that. And then I just had another trial with her where she gave that intro–

Karen Tynan: That same intro.

Kevin Bland: …following what had happened a few weeks ago in that trial. Something else for folks that maybe are going to do this themselves and try to do appeal themselves, an employer that’s representing themselves, whatever. The other thing that I think folks don’t realize, it doesn’t…you can also introduce a photo in your opening statement. “You’re going to see this photo. This shows you the machine that we’re looking at. You will hear testimony that this is how this machine works.”

I went to trial the other day on, it was a, I don’t know what you want to call it, like an adventure, right? You had the high wire lines and zip lines and stuff like this one was called a Flying Squirrel. I can’t get too deep in here because I’ve still got a couple days of trial. But we started out with a picture of that so she knew what the Flying Squirrel was rather than trying to describe it. And then as the people are testifying, she knew what it was. Another one, the one last week we did, I started out and I talked, and this was the one with Bill. I go, “Bill, why don’t we just… I mean, we can do an opening statement. Why don’t we just agree to show her the video of what happened right off the bat then she’ll know what we’re talking about.” It was Judge Avalar, ironically again. And so, we just did that for our opening statement.

Karen Tynan: Yes.

Kevin Bland: “Here’s a video of what happened. This is what the issues related to that.” These two citations. Five minutes, she has the picture, she knows what we’re talking about and then the evidence can mean something.

Karen Tynan: I like that. And I will say that when the judge at the start says, “Okay, does the division have an opening statement?” And nine times out of 10 are, and then sometimes I’ll hold mine until I start my case and you’re nodding. I wish people here could see you giving me the big thumbs up, but sometimes I don’t want to put my cards on the table yet. I’m not quite sure if the inspector’s going to carry the day. I maybe don’t want to talk too much about the Independent Employee Act defense or maybe I just want to lay back a little. And so, I would say the majority of the time I hold back and don’t do my opening until I’m opening my case. What do you think?

Kevin Bland: I’m about 75% of the time when I’m asked, I’ll defer to my case in chief.

Karen Tynan: Okay.

Kevin Bland: Yeah.

Karen Tynan: So, we’re the same pretty much.

Kevin Bland: Yeah. And sometimes I will do a very truncated because I get to listen to the divisions first and if I feel like that judge has no idea what the heck we’re going to be talking about, I will do an opening statement just to illustrate like, “Okay, what we’re dealing here with is a backhoe and on a construction site and they were using it to dig a trench,” and blah, blah, blah, whatever. So, they have an idea and sometimes you may think this is silly, but I might have to describe what a backhoe is because some folks, we just presume because we’re neck deep in the case, they may not know what a backhoe is even though it seems like they should, right?

Karen Tynan: For sure. So, I think that’s a really good kind synopsis of opening statements and the strategies. Now let’s talk about how the Cal/OSHA attorneys utilize the inspectors maybe as their first witness. How do they have the inspectors testify and lay foundation or also how they’ll have the inspectors testify with hearsay statements from employee interviews of what the employee said.

Kevin Bland: Did you say maybe?

Karen Tynan: Maybe. So, let’s just figure our audience might have never even seen a Cal/OSHA trial or any OSHA trial. So, in my experience, the Cal/OSHA attorney’s going to call the inspectors first and kind of–

Kevin Bland: The reason I’m hesitating, I’ve seen this trend–

Karen Tynan: Away from it.

Kevin Bland: Yes. Where they’re calling the injured employee first. So then…as if they’ve never talked before. And I’ve found that they have been drifting a little bit so that then they can capture everything they’ve screwed up in the first part of the case. I have noticed that trending in about the last, oh, four trials, but for the first first trial-

Karen Tynan: The first 20 years you did.

Kevin Bland: Yeah, yeah. It was always the first and then they follow up with-

Karen Tynan: Which makes sense because the inspector is going to edify the judge about the inspection, the machine, who’s who. So, when they put the inspector on, sometimes clients are a little surprised and I’m going to say this. At the plotting pace of the initial inspector testimony, the inspector gets on the stand, they don’t say, “Okay, well, I showed up at ABC Manufacturing and here’s what I saw.” What do you see in those first… I’m not trying to be sarcastic. Let’s say the first two hours, you can just spend that with the inspector’s background, their training, how they found out about the case, how they got assigned the case, traveling to the location, right?

Kevin Bland: Right. No, exactly. And the attorney in me understands, and I have this discussion with the clients ahead of time so they’re prepared and even when I’m prepping clients or someone that we’re going to have to testify, I explain to them, “I’m going to have to ask you stupid questions.”

Karen Tynan: Basic questions.

Kevin Bland: And you’re going to say, “You don’t know what a backhoe is? Why did you ask me what a backhoe is? You don’t know that I work for ABC Construction? We just talked,” because it’s a record that’s going to be read in the future. So, I get that. But sometimes I think, especially with the newer attorneys, they’ll start going back to, “Okay, so where did you go to high school? What classes did…” You know what I mean? It doesn’t need to…it can be done in about 15 or 20 minutes. It doesn’t have to be an hour and a half and then–

Karen Tynan: Because I really don’t care if the inspector was a water tester at a water plant in Coachella, California 30 years ago, but suddenly we’ve spent 15 minutes about their experience training and expertise and I think they’re trying to show, “Oh, this is a really smart person. They have an engineering background. They’re task oriented, they understand details.” Come on, man.

Kevin Bland: Yeah. And all the labor codes said is they have to have their mandated training. I’d rather delve into what the mandated training is, but they don’t seem to do that. The other thing that you had mentioned, Karen, that I think is vastly important and I feel like it is, I’ll use the word abused because there’s a regulation that says hearsay can be admitted and it has to be corroborated with something else. I feel like 90% of the testimony by the inspector is hearsay now and then they rely on the exception for supervisor. If they’re a supervisor, then it’s an admission. Not everything is an admission. And then there’s layers of hearsay to it. And so be prepared for that and you can kind of tell in trial with experience that they’re… I have this theory. I think the ALJs seem to be just letting everything in because it’s not a jury and they’re an attorney, they can kind of sort through what is legit, or at least we hope so, right versus

Karen Tynan: Right. What’s important, what’s corroborated.

Kevin Bland: But the hearsay thing is…

Karen Tynan: I do see this with inspectors, before we move on from this. I see inspectors trying to testify to documents that they have no idea about. For example, they’ll obtain a document from a client–

Kevin Bland: From a police department.

Karen Tynan: …a police department. Okay, good one. So, they get a police report, and it’s included in their file. And so, the Cal/OSHA attorney says, “Oh, Your Honor, we’ve got Exhibit Seven here.” And the inspector’s looking at the police report and then they expect to get the police report in as a business record. Well, it’s not a Cal/OSHA business record, right?

Kevin Bland: Oh, but wait, the argument is it’s in their file; therefore it is their business record and a note all of a sudden is a business record because it’s in their file, and that is abused over and over and over again. I’m sorry, that’s one that’s not-

Karen Tynan: No, it’s for sure. It’s one of my hot buttons too when inspectors think that any document that is “in the file” is a business record. Well, if you subpoenaed medical records, you can’t use the hearsay exception for that.

So anyway, that’s a whole other podcast. That’d be part two of trial tactics, but I do like to warn employers and for people to be conscious of how documents are going to come in and the strategies used by the Cal/OSHA attorneys. Now let’s talk about witnesses, whether it’s an injured worker, other workers, and the direct examination. I see Cal/OSHA attorneys that subpoena, let’s say a worker, Mary Sue Smith, she was a flagger and she’s a witness in their case and she gets subpoenaed and then when she gets on the stand, she’ll say, “Well, I talked to the attorney last week for 10 minutes and they told me to show up.” And the person isn’t oriented to the process, isn’t prepared, and then they get asked all these questions they can’t follow. So, let’s talk about direct examination and what you see as a tactic.

Kevin Bland: No, absolutely. And remember earlier we did a podcast the other day on discovery?

Karen Tynan: Yes.

Kevin Bland: This is how I feel sometimes that our trial is their form of a deposition discovery with some witnesses, that they have never talked to them before, don’t know what they’re going to say, how they’re going to end. And what I love about it though is most of the time it’s better for us because they’re telling the truth. And not always, but sometimes they have an ax to grind, and it gets a little bit…but direct examination is supposed to be an open-ended question that doesn’t beg the answer. Like, “What were you doing the morning of the thing?” Versus, “You were told the morning of the 8th to pin the guard up on that saw, weren’t you?” That’s cross-examination, that’s a leading question and in direct examination you can’t do leading questions. And we see that a lot trying to…now, of course we object and depending on the judge, it’s usually sustained.

Karen Tynan: And after the third or fourth time, I will say the judge will very gently and very kindly typically say, “Cal/OSHA attorney, could you please try to ask a non-leading question?” Look, we’re all trying to do our best, right? And we all have varying levels of experience and it’s not about shaming anyone, but you should be able to ask a non-leading question and take someone through a narrative.

Kevin Bland: Yeah. I will say this, I think direct examination is harder for an attorney-

Karen Tynan: It is.

Kevin Bland: …than cross-examination, but division has the burden and they go first, every one of their witnesses are direct and has to be direct examination. And even though they don’t like the answer, more than likely they don’t know what the answer’s really going to be with…how the heck that even happens with the inspectors because I find sometimes I don’t even know if they’ve talked before.

Karen Tynan: Exactly. And I will say this, I’m going to share a quick trial story, Kevin. I was in trial up in Washington State with Kathy Fletcher, our colleague, and the attorney on the other side, the LNI attorney had called a witness that clearly wasn’t prepared. The witness was on their iPhone for a Zoom trial and is answering questions. It’s not going well. The witness is frustrated so the witness pulls out their pack, starts smoking.

Kevin Bland: Oh, boy.

Karen Tynan: And it was just a real struggle, right? And it was because of a lack of kind of time and preparation, but Kathy turned to me at a break after watching the guy having to smoke his way through his testimony and she said, “Karen, the majesty of the courtroom is dead today.”

Kevin Bland: I do want to say, because I feel like we kind of…I’m not trying to disparage because there are some very good attorneys. These are just things that have happened in trials in real life.

Karen Tynan: For sure.

Kevin Bland: And the reason I think it’s important for the folks is so that if you’re doing your own trial, you’re prepared for what you may see. And I’m hoping that with this information, you will have some tools in your tool belt to try to deal with them in a legal manner. And that’s kind of what I…because I don’t want to disparage that.

Karen Tynan: Oh no, for sure. We’ve told you about some of our great adversaries. And then Kevin, let’s talk about the employer’s case. So, the employer puts on witnesses and then the Cal/OSHA attorney has to cross our witnesses, right? And I find that there can be some pretty strong effective cross-examination and it’s an area where we do have to prepare our witnesses and do some faux cross and work hard for our witnesses to withstand some good cross-examination.

Kevin Bland: No, I agree with that. And here’s one thing that I always, always stress. If the answer is no, and it’s a bad answer and that’s just the reality of it, and it may be on something that is meaningless in the grand scheme of things, don’t try to wiggle because we see that sometimes where an inspector just can’t… “Did you measure this?” “Well…” It just-

Karen Tynan: Just say no.

Kevin Bland: Just say, “No, I didn’t measure it.” “How do you know how long it is?” “I estimated it because I’ve seen these 500 times in the past and this was approximately eight feet.” Don’t say, “Well, I didn’t…no one asked me to measure it. I didn’t need to measure that.”

Karen Tynan: Getting defensive.

Kevin Bland: Yes. So, on cross-examination, trying to keep succinct. The other thing is sometimes the answer needs more information to answer. And so, if you don’t add that information, don’t worry about it. I got you.

Karen Tynan: I got you.

Kevin Bland: I got redirect. I can ask you what was missing in that answer, problem solved. The most important thing that I stress to clients above everything or anybody that’s going to be testifying as a witness for me, the truth, the truth, the truth. Because once you lie about one thing, you’re a liar and we want to be the most credible testimony on the stand in the whole hearing every time.

Karen Tynan: For sure.

Kevin Bland: And so, I just can’t stress enough, it isn’t worth trying to tell them what to say, how to say it, what is the information? We can deal with that, right? Even if it’s bad information, okay, well, maybe there’s legal argument around it or maybe we dig into it a little bit deeper and then find out, well, that isn’t really what I meant. And so, this is so important.

Karen Tynan: Yeah, don’t worry.

Kevin Bland: I’m sorry. I’m drawing it on and we’re running out of time.

Karen Tynan: No, no, no. I agree with you, Kevin. I think preparing folks for strong cross-examination by Cal/OSHA attorneys is important and they do a good job at it, but that’s part of lawyering is we prepare our witnesses and we’ll put on our case. So, we’ve given you this kind of synopsis of Cal/OSHA attorney trial strategies and what some of their tactics are and kind of how these trials work. So, we appreciate you listening to Karen and Kevin today. Always look for our blog articles on Ogletree.com. Check out our practice page, the Workplace Safety Practice Group on that same website, check out our webinars and also follow us on LinkedIn. Thanks for listening.

Kevin Bland: Stay safe out there.

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