New blog to cover California Supreme Court

I received an invitation yesterday afternoon to attend a reception to celebrate the launch of a new blog “focused on providing substantive coverage of issues concerning the Supreme Court of California,” and billed as a joint project of the California Constitution Center at Berkeley Law and the Hastings Law Journal: SCOCAblog.

I don’t know if I was randomly chosen for an invitation or I was invited because I am a blogger on appellate issues. It’s nice to think it is the latter, and to think that maybe if I throw a link or two to SCOCAblog from time to time, the bloggers there might return the favor.

Oddly, yesterday I wasn’t able to find any trace of news about the impending launch other than what is contained in my invitation. I found nothing about it at the website for either of the endeavor’s partners, and going to SCOCAblog.com in a web browser brought up the same generic page brought up for any other inactive URL; there was no “coming soon,” “under construction,” or other message hinting that SOCAblog was on its is way. You would have thought it was a big secret.

This morning is a different story. Though yesterday’s invitation announced a launch date of November 24, 2014, the blog appears to have launched ahead of schedule.

What can Ernest Hemingway teach you about legal writing?

Hemingway portrait

Ernest Hemingway

In a Wall Street Journal article last month, “Why Adverbs, Maligned by Many, Flourish in the American Legal System,” Ernest Hemingway is cited twice as an example of an effective writer who eschewed adverbs. This colorful start to the article expresses the view of many lawyers:

No part of speech has had to put up with so much adversity as the adverb. The grammatical equivalent of cheap cologne or trans fat, the adverb is supposed to be used sparingly, if at all, to modify verbs, adjectives or other adverbs. As Stephen King succinctly put it: “The adverb is not your friend.”

In large part, the article explains the need for adverbs in legislation and notes the significance they can have in the construction of a statute.

Bryan Garner, editor of Black’s Law Dictionary, is regarded by scholars as the dean of legal prose. He says legislators and adverbs need one another.

***

Says Mr. Garner: “No legislative drafter ever says: Did I pull my readers in? That’s something Stephen King has to ask.”

Ah, back to that age-old rule: know your audience when you are writing. (More on what the article teaches about that at the product liability blog Abnormal Use.) The article moves on to the more contentious issue of the use of adverbs in persuasive writing and the use of adverbs by judges:

“When you’re drafting an opinion, it’s just so tempting to use an adverb, so satisfying. It says exactly what you mean,” Alex Kozinski, chief judge of the Ninth U.S. Circuit Court of Appeals, said. “I don’t think any of us can follow the rule as religiously as Hemingway did. I wish I could.”

Unlike his peers, Justice Antonin Scalia is unapologetic. One legal linguist marveled at his “caustic exploitation” of adverbs in his opinions, which crackle with phrases like “blatantly misdescribes,” “most tragically” and “judicially brainstormed.”

Unsurprisingly, the participants in a LinkedIn thread that started with a reference to the article tended to concentrate on the use of adverbs in persuasive writing, and expressed their overall disdain for adverb use. There was general agreement that adverbs like “clearly,” “obviously,” and the like signaled weak arguments. The article offers statistical support for that view, with a caveat (again, relevant to the “know your audience” maxim):

According to a 2008 study by two scholars at the University of Oregon School of Law and Brigham Young University, lawyers who stuff so-call intensifier adverbs in their legal briefs—words such as “very,” “obviously,” “clearly,” “absolutely” and “really”—are more likely to lose an appeal in court than attorneys who avoid those “weasel words,” as Mr. Garner described them. But notably, the study found that the habit can actually work in a lawyer’s favor if the presiding judge really likes to use those adverbs, too.

Which leads me back to Hemingway. In the LinkedIn thread, California attorney Steven Finell praises Hemingway for more than just adverb avoidance, crediting him for precise writing without adverbs and using adverbs effectively: “Lawyers can learn a lot from reading Hemingway: short sentences, powerful verbs and nouns–and descriptive adverbs and adjectives.” Finell’s post provides great examples of precise adverb-free writing.

I’ve never read Hemingway. I might give him a try.

How to make your mediation brief effective

There are some big differences between appellate mediation and mediation while your case is still pending in the trial court. But appellate and trial lawyers can both benefit from reading mediator Rande Sotomayor’s excellent article, “Effective Mediation Briefs,” in this month’s California Lawyer. I know Rande through my networking group, The Esquire Network (there’s my full disclosure), and have seen her present on other topics. I know her to be a very thoughtful mediator, and it shows in this article.

What I found particularly persuasive was her advice that lawyers should get over their penchant for keeping the entirety of their mediation briefs confidential:

Many lawyers submit “confidential” briefs to the mediator, hoping to avoid premature disclosure of their position. But if the brief is confidential, how can the information impress the folks sitting across the table?

A productive strategy is to deliver the message ahead of time, thereby promoting a worthwhile – and mutual – premediation evaluation of the case.

This approach conveys not only your (hopefully) winning arguments, but also what it will take to persuade your client to settle. Sharing a thoughtful brief in advance also allows everyone to discover unanticipated areas of agreement. Then, the parties can drill down to the real areas of disagreement at the heart of their dispute.

A lot of lawyers are going to have a problem with this advice, out of fear that the adverse party will approach the mediation as a chance to learn how best to manage the case rather than as a meaningful effort toward settlement. You can mitigate the chances of this by making your mediation brief effective in other ways (more tips on that in the article).
Lawyers may likewise fear tipping off the other side even if they are confident the other side is engaging in mediation in good faith. But is there any real danger here? Any opposing counsel worth his salt is going to figure out the bulk of your strategy anyway, either through papers filed during the course of the litigation or through effective discovery:
An interrogatory is not objectionable because an answer to it involves an opinion or contention that relates to fact or the application of law to fact, or would be based on information obtained or legal theories developed in anticipation of litigation or in preparation for trial.

(Code Civ. Proc., § 2030.010, subd. (b).) Similar information can be obtained through requests for admissions. (Code Civ. Proc.,  § 2033.010.) Unless you plan to stonewall or be cagey in discovery — or your opposing counsel is not sharp enough to utilize all the discovery tools at his disposal — you are not going to keep your strategy a complete secret anyway.

I think the advice to disclose one’s position goes double for appellate mediation, especially for the appellant. The appellant might have been on an equal footing with the respondent during the trial court proceedings, but with statewide reversal rates hovering around 20%, the appellant starts out as a huge underdog in the appeal.  The appellant’s most important task during the mediation is to convince the respondent that the appellant’s chances of succeeding are far higher than that 20% average. An appellant can’t do that without disclosing at least some of his strategy. I don’t worry about giving the respondent additional lead time to consider those arguments before my appellant’s opening brief is filed. The easy availability of extensions and the “grace period” for filing the respondent’s brief is going to give the respondent plenty of time in any event.

Rande’s piece has a lot of great tips. Read it for advice on how to communicate with the mediator and the adverse party, through your mediation brief and otherwise.

Opposing the pro se appellant

I think a lot of people might think that any time the appellant is a lay person representing himself (i.e., appearing “pro se”), the respondent has a pretty easy time of it. Is that the case?

I was reminded of this issue by an article on pro se plaintiffs in the Daily Recorder (subscription only link) titled “Pro Se Suits No Picnic for Defense Lawyers,” which described the difficulties of litigating against pro se plaintiffs at the trial court level. I think some of those difficulties can carry on through appellate proceedings, but overall I think a defendant-respondent in the court of appeal has an easier job opposing a pro se plaintiff-appellant in the Court of Appeal than the defense lawyer has in the trial court.

First, let’s look at how the article characterized suits brought by pro se plaintiffs: “Suits filed by the unlawyered are often frivolous. Some allege outlandish conspiracy theories, while others fail to make a recognizable legal claim.” None of that is likely to get any better by the time the case reaches the Court of Appeal (except, perhaps, where the pro se plaintiff has successfully amended the complaint to state a cognizable cause of action). The appellant’s opening brief may likewise be frivolous and a conspiracy theorist’s dream, but on appeal, there is an extra tool to combat those characteristics: the standard of review, which can often render irrelevant whole swaths of argument devoted to contested versions of the facts.

The article goes on to note that suits brought by pro se plaintiffs can be lengthy and costly because such plaintiffs are usually unwilling to settle and the trial court gives the pro se plaintiff leeway in complying with the rules of court that the court would not grant to a represented litigant. I have not seen either of those factors affect an appeal much.

Settlement on appeal is not unheard of, but it is far less frequent than in trial court in any event (it is not even always discussed), so a particularly stubborn plaintiff is not likely to skew settlement statistics in appellate proceedings. In fact, a pro se plaintiff-appellant might even be more willing to settle on appeal (and for a nuisance value) than he was in the trial court if he can be made to realize that the reversal rate is less than 1-in-5.

I haven’t seen pro se appellants given extra leeway, either (though I am always sure to cite case authority stating that they should not be given any). While it is true the Court of Appeal will make sure that pro se appellants get a fair shake, that approach usually manifests itself not in granting leniency with rule compliance, but in giving the the pro se appellant a respectful hearing, even where it is obvious he is wasting the court’s time. There are usually so few procedural steps in an appeal that there are few occasions for the appellant to invoke leniency in any event. The closest I ever saw was a pro se appellant who moved for leave to file an opening brief of nearly 50,000 words — the length of a short novel, and more than three times the usual limit. She was denied relief.

I think one of the biggest challenges in opposing pro se appellants can be to decipher their arguments. Briefs I have seen from pro se appellants (not always in cases in which I represent the respondent) tend to be long-winded, repetitive, and convoluted. A respondent must spend a good deal of time untangling the opening brief to clarify the arguments being made before starting on the respondent’s brief. If a respondent forgoes that initial analysis, he risks drafting a respondent’s brief that is likewise wordy, repetitive, and convoluted — at least in its first draft.

I can’t quantify this next point or offer any specific evidence for it (other than the anecdotal evidence in the article of pro se plaintiffs’ general unwillingness to settle), but I believe that pro se appellants are far more likely than represented appellants to appeal for reasons so personal and important to them that they are blinded to the realities of an appeal. Thus, I think they are more likely to pursue frivolous appeals, make arguments that don’t take into account the standard of review (even if they are familiar with the concept of a standard of review), and even appeal in situations where success could make them worse off.

All that said, one should resist the temptation to think that all pro se appellants are doomed to failure. Sometimes, they win, even against big companies with top-notch representation.

Doesn’t anybody read the rules?

When is a brief written by a lay person likely to be of comparable quality to a brief written by lawyer for the other side in the same case? When both briefs stink:

Brooks’s opening brief on appeal includes a statement of facts without any citation to the record. In the argument portion of the brief, references to facts are occasionally, but not consistently, supported by citations to the record. ECG’s respondent’s brief, which relies extensively upon facts developed at trial, does not include a single citation to the record. The failure to include citations to the record violates rule 8.204(a)(1)(C) of the California Rules of Court: Briefs must “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” Although these failures subject the briefs to being stricken, we have elected to disregard the noncompliance. (Cal. Rules of Court, rule 8.204(e)(2)(C).)

(In re Marriage of Brooks and Robinson (2008) 169 Cal.App.4th 176, 180 fn. 1.) Maybe stink is a strong word. It’s possible the briefs made excellent points and were terrible only in their failure to comply with the rule requiring citations to the record. But still . . . the odds that neither side would comply with such a basic rule strike me as being quite low. Here, one of the parties (Brooks) was self-represented, but I’m betting that somewhere out there are cases with lawyers on both sides of the appeal filing non-conforming briefs.

This sounds like the beginning of a pitch urging you to employ an appellate attorney, doesn’t it?

You know what I do when I have a question about procedure? This is a really radical concept for some . . . I look up the applicable rule. You don’t have to be a rocket scientist — or even an appellate lawyer — to realize that’s a good idea.

When winning is risky

Sometimes, an appeal doesn’t make sense to me. This can be true even if there are better-than-average odds of winning. When an appeal doesn’t make sense to me, I ask why the party wants to appeal. I’m sure that most of the time, the reaction is to think, “Isn’t it obvious? Because I lost!” But to my mind, that’s not always a good enough reason. As a matter of effective client relations, I get curious about motives when it seems to me, as an outsider, that a win on appeal would yield a negligible benefit or even risk making the appellant worse off.

An example of the latter situation is Department of Fair Employment and Housing v. Ottovich, case no. A136607 (1st Dist.  June 30, 2014), where I think the appellant potentially had a whole lot to lose by winning the appeal.

The appellant was the defendant below, where the trial court struck his answer and entered his default as sanctions for discovery misconduct. Judgment for more than $240,000 was entered after the prove-up hearing. The defendant successfully moved to set aside the default judgment (and underlying default) based on the plaintiff’s failure to serve a statement of damages, but the court left the answer stricken, granted summary judgment on liability based on the allegations of the complaint, and held a jury trial on damages, which resulted in a judgment for the plaintiff of only $8,500. If I were the defendant, I think I would have been thankful for avoiding that judgment of nearly a quarter million dollars, counted my blessings that my liability was only $8,500, and called it a day.

Not so for the appellant here, who contended that when the default judgment was vacated, his answer was revived as a matter of law. Clearly, the appellant wanted the issue of liability tried, and wanted to pay zero.

The appellant lost his appeal, but suppose he had won. What’s the up side? Sure, the case gets to proceed on the merits. But appellant, if found liable, would be facing a new damages determination. Who’s to say that a less-friendly jury or better lawyering for the plaintiff the next time around wouldn’t result in a judgment against the appellant far in excess of $8,500?

I have to think there was something besides money driving the decision to appeal in this case. . . or maybe I’m wrong about the process after reversal and there would be some way to avoid having damages tried again (if you think so, shoot me an email, and I will happily correct the post, if warranted). But going solely by what I can glean from the decision, I would have advised against the appeal.

Any litigation, including an appeal, involves risk. Consider that reversal rates hover around 20% and that you may be throwing good money after bad. There is enough risk in the possibility of losing. Why pursue an appeal where winning could make you worse off?

Sometimes the standard of review is better than you might first think

Clients (and their lawyers) can be disheartened when they conclude that the ruling they want to challenge on appeal is subject to review for abuse of discretion — a standard of review that is indeed daunting. But keep in mind that rulings ordinarily subject to review for abuse of discretion may be subject to the much more appellant-friendly de novo (or independent) standard of review, in which the court of appeal decides he issue without any deference to the trial court.

The defendant-appellant in Children’s Hospital Central California v. Blue Cross of California, case no. F065603 (5th Dist. June 9, 2010) was able to take advantage of this situation. Blue Cross had a contract with the state to provide a managed care plan for Medi-Cal recipients. Plaintiff hospital and Blue Cross had a written rate agreement that lapsed, and did not enter into a new agreement for about ten months. In the interim, the hospital kept providing services and Blue Cross paid the hospital more than $4 million based on government Medi-Cal rates, but the hospital contended that the reasonable value of the services provided was nearly $11 million, and sued to recover the difference.

Blue Cross contended that the trial court improperly limited the evidence of the reasonable value of the services by denying Blue Cross’s discovery motion to compel the production of the hospital’s written agreements with other insurers and granting the hospital’s motion in limine to preclude any evidence of the rates accepted by or paid to Hospital by other payors, the Medi-Cal and Medicare fee for service rates paid by the government, and Hospital’s service specific costs. The hospital contended that reasonable reimbursement rates were governed solely by the six factors set forth in a regulation.

Normally discovery rulings and evidentiary ruling are subject to review for abuse of discretion. Here, however, Blue Cross benefited from a de novo standard, because the basis for the trail court’s rulings — its conclusion that the evidence was irrelevant — is an “analysis of the substantive law governing the case,” making it a legal issue subject to independent review.

The abuse of discretion standard is full of nuance. Don’t let it automatically discourage you from pursuing an appeal. Instead, consider the actual error to be asserted to see if it comes within independent review.

The Court of Appeal and the Supreme Court as courts of first resort?

Well, this is unusual. We usually refer to the Court of Appeal and Supreme Court as “reviewing courts” because they review the decisions of lower courts. But yesterday’s decision in Disenhouse v. Peevey, case no. D063799 (4th Dist. June 3, 2014) discloses a rare instance in which either of these courts is the court of first resort.

The Public Utilities Commission allegedly refused to allow the plaintiff to attend a commission meeting because of plaintiff’s affiliation with the Sierra Club. She sued in superior court to enjoin the meeting, on the ground that her exclusion violated the Bagley-Keene Open Meeting Act, then filed an ex parte application for a mandatory injunction requiring the commission to open the meeting to the public. The trial court held that it lacked jurisdiction and dismissed the complaint.

On appeal, the Fourth District, Division One, holds that the complaint was properly dismissed for lack of jurisdiction. The Open Meeting Act requires meetings of state bodies to be open to the public, and Government Code section 11130 provides that “any interested person may commence an action by mandamus,injunction, or declaratory relief for the purpose of stopping or preventing violations or threatened violations of [the Act].” But the California Constitution, at article XII, section 5, “confers plenary power on the Legislature to ‘establish the manner and scope of review of commission action in a court of record’ [citation],” and  the legislature did so in Public Utilities Code section 1759, which gives only the Supreme Court and the court of appeal “jurisdiction to review, reverse, correct, or annul any order or decision of the commission or to suspend or delay the execution or operation thereof, or to enjoin, restrain, or interfere with the commission in the performance of its official duties[.]”

The court notes there is no real conflict between the Open Meeting Act and the Public Utilities Code provisions. They can be read harmoniously because the Open Meeting Act makes mandamus a means of enforcing the Act, and the Public Utilities Code authorizes a mandamus action to be brought in the court of appeal or Supreme Court.

A substantial evidence argument works on appeal

Substantial evidence challenges don’t succeed very often on appeal, so I sat up and took notice when I saw a successful challenge to the sufficiency of the evidence in today’s decision in Martinez v. County of Ventura, case no. B244776 (2d. Dist April 8. 2014). The Court of Appeal reverses a judgment for the public agency defendant that had successfully asserted a design immunity defense at trial to avoid liability for a defectively dangerous roadside condition that contributed to the plaintiff’s injuries. The burden of proof was on the county to establish that they had made a discretionary design decision in installing the type of roadside drain at issue. However, they were unable to produce any plans for the type of drain involved or any evidence that someone with discretionary authority had actually approved the design.

The substantial evidence standard my not require much evidence to affirm a judgment, but it requires enough that a rational factfinder could reasonably reach the conclusion supporting the judgment. Here, “[t]he evidence showed that the maintenance workers simply built and installed the drains in the field as they saw the need for them.”  A county official testified that he had approved the design, but that county did not have discretionary authority under the law, nor was there any evidence that the official that did have discretionary authority had delegated any authority to the testifying official.

Too many parties (and, unfortunately, even some lawyers) do not understand the substantial evidence standard of review. (That’s a subject for another post.) Some write it off from consideration because it is usually very difficult to win. But Martinez reminds us that the argument should not be overlooked just because it is usually difficult.

What happens when standards of review collide?

Sometimes . . . nothing. As in Pielstick v. MidFirst Bank, case no. B247106 (2d Dist. Mar 26, 2014), in which the court was asked to reverse the trial court’s refusal to allow a plaintiff to voluntarily dismiss his suit after the hearing on demurrers had begun. First issue: what standard of review applies?

There is some conflicting authority as to the appropriate standard of review for a request to voluntarily dismiss a case pursuant to section 581. The majority of cases apply a de novo standard, reviewing the issue as a matter of law where it involves the application of undisputed facts to the statute. [Citations.]

However, in Tire Distributors, Inc. v. Cobrae (2005) 132 Cal.App.4th 538 (Tire Distributors), Division Eight of this District held that an abuse of discretion standard is more appropriate, noting that “every court to consider the issue has based its holding on the facts and circumstances surrounding the dismissal, evaluating whether allowing the dismissal to stand would be unfair or would endorse dishonest litigation tactics.”

This conflict doesn’t turn out to be a problem for the court at all, as it concludes: “We find that we need not resolve the apparent conflict between the cases cited above. Under either standard, no error occurred.” (Emphasis added.)

Once again, an appellate court demonstrates that it will not decide issues unnecessary to the resolution of the case.

The consequences of reluctant unanimity in appellate decisions

Through LinkedIn, I ran across an interesting appellate blog, Briefly Writing. In a post yesterday, blogger Michael Skotnicki shared his alarm at learning from the Eleventh Circuit’s chief judge that panel judges that initially dissent will “routinely” change their votes in order to make the decision unanimous (presumably, only once it is apparent that the majority judges cannot be persuaded to come around to the dissenter’s point of view). Skotnicki believes the practice harms appellate counsel because a losing client may think that the unanimity of the decision suggests he got bad advice or bad advocacy during the course of the appeal, and a wining client may think that unanimity is evidence that the lawyer’s assistance wasn’t that valuable.

I think there are broader implications. Skotnicki notes that the chief judge said this practice results from a sense of comity among the judges and the desire to strengthen precedent. I don’t begrudge any judge the desire to strengthen precedent through unanimity — a desire that has been expressed by Chief Justice John Roberts of the United Stated Supreme Court –  but I think that how a panel gets to a unanimous opinion matters a lot. If an initial opinion that splits a panel can be re-drafted in a way that accommodates a dissenter without unduly weakening the central point of the initial majority– a tall order, I’ll grant —  then the resulting unanimity is well-achieved.

However, changing votes based merely on comity and a desire for strengthened precedent are bad, not just for the lawyers, but for the system. Split decisions are significant in at least two common scenarios.

At the federal level, where circuit precedent may only be changed through en banc review, the dissent can have an impact on whether the circuit will rehear the case en banc. Whether en banc review is sought of the split decision itself or of a later unanimous decision compelled by a split-decision precedent, it seems to me that a principled dissent can influence can make the difference as to whether or not en banc review will be granted, and even have an impact on the ultimate decision reached on en banc review.

In California appellate courts , where a panel is free to depart from decisions by other panels, even those in its own district (that may shock some of you non-California lawyers, but it’s true), a well-reasoned dissent may be just what convinces the appellate court that the precedent was wrongly decided.

I cannot imagine that comity and a desire to strengthen precedent are ever the only reasons for a dissenting judge or justice to change his or her vote, in the Eleventh Circuit or anywhere else. Maybe there was more to the chief judge’s comments on that topic?

Collateral estoppel is no day at the beach (a lesson in appealing in a timely fashion)

Occasionally, a party will try to get around the finality of a decision by making a “collateral attack” on its validity in a separate proceeding. That can work if you are attacking the jurisdiction of the tribunal to issue the prior ruling, but otherwise . . . well, I haven’t seen it work. (But there may be a case out there.)

The plaintiffs in Bowman v. California Coastal Commission, case no B243015 (2d. Dist. March 18, 2014) were unusually imaginative in their attempt. Plaintiffs owned a coastal property. Their predecessor had applied for a coastal development permit to refurbish the residence on the property. After his death, his successors (plaintiffs) received notice that the permit had been approved on the condition that the owners offer to dedicate a lateral easement across the property. The owners did not appeal that decision.

Later, they applied for a second permit, this time to replace a collapsed barn on the property, but also including remodeling of the residence and some other improvements that had been approved in the first permit. They asked the County to remove the condition that was placed on the first permit. The County did so, but two commissioners and couple of public interest groups appealed to the Coastal Commission, which reversed, meaning the condition stayed. The owners petitioned for administrative mandate.

The arguments the owners (SDS) had made to the commission concerned whether the easement was an appropriate condition to place on the first permit. They get nowhere, for the Court of Appeal points out that having failed to appeal that decision on the first permit, the decision — condition included — had become final, and the doctrine of collateral estoppel precluded the owners’ collateral attack on the condition.

Since they never completed the renovation authorized by the first permit, the owners argued they could avoid collateral estoppel by “walking away” from the first permit, giving Justice Gilbert an opportunity to deliver one of his typically witty lines (emphasis mine):

SDS argues, without citation to authority, that a permit applicant who is dissatisfied with a permit condition may simply “walk away” from the permit and apply for a new one. SDS may be able to walk away from the permit, but it cannot walk away from collateral estoppel.

The lesson here? If you are dissatisfied, appeal in a timely fashion. Don’t count on being able to attack any aspect of the decision in a later proceeding.

Thoughts on publication of opinions imposing appellate sanctions for frivolousness

This recent Southern California Appellate News post by Ben Shatz led me to a case that got me thinking further about the utility of publishing opinions imposing appellate sanctions. More than six years ago, I posted in response to a law review article that Ben co-authored with another, which surveyed the cases imposing appellate sanctions. As I recall, the article limited the time frame of the survey to the period since unpublished decisions became available online, since so many of the decisions imposing sanctions are never published. That led me to write:

I was struck by how many of the cited cases were unreported.  The Court of Appeal should want to publicize the conduct that leads to sanctions, because this would inform and deter.  It could be that sanctions are so rare (awarded in approximately 1 out of every 500 cases during the studied period) that the Court of Appeal finds additional deterrence unnecessary.

My thinking at the time was that, as a rule of thumb, opinions imposing appellate sanctions should generally be published, but I hadn’t really taken into account the criteria for publication. The mere imposition of sanctions does not automatically fit within any of the established criteria for publication in rule 8.1105(c)(6), Cal. Rules of Court. I was thinking in the abstract that publication should be encouraged, even if it meant amending rule 8.1105.

However, I think my initial concerns were probably misplaced. Educating attorneys on what is and is not sanctionable was the intent behind my initial thought that sanctions decisions should be published, but is that really needed? Consider the standard for frivolousness:  ”whether any reasonable person would agree that the point is totally and completely devoid of merit.” In other words, no reasonable person would agree that the point is not frivolous. Doe we need guidance on that?

That standard for frivolousness is at odds with the idea that any sanctions decision would be a close call. Publication of an opinion imposing sanctions for frivolousness might frequently undermine the very basis for the imposition of sanctions, because it would suggest that the imposition of sanctions was a close enough call that it requires an explanation justifying publication under rule 8.1105. Those should be rare occasions, indeed.

If you have thoughts on this, feel free to leave them in the comments.

The “outsider’s perspective” theory illustrated in the extreme

I’ve mentioned before that one of the valuable things an appellate lawyer can bring to your case is the “outsider’s perspective” — the ability to give the case an objective look that trial counsel is often unable to see because of close involvement in the case. What the appellate lawyer might see as the best grounds for appeal may differ wildly from what the trial lawyer thinks is a good basis for appeal.

A trial lawyer that develops tunnel vision on a case usually does so because of his deep involvement with the case over a long period of time, resulting in a personal emotional and intellectual investment in the case. But the tunnel vision can be even more acute when the trial lawyer is a specialist in the substantive area of the law particular to the case. Thus, while an appellate lawyer can bring a fresh angle to almost any case, it may be even more likely the appellate lawyer can do so if the appellate lawyer is relatively new to the substantive law at issue.

That may seem counterintuitive, but I’ve got some high-powered opinion on my side. In today’s Recorder, there’s an excellent article on how experienced Supreme Court appellate lawyers are making inroads into the highly specialized practice of arguing patent cases before the U.S. Court of Appeals for the Federal Circuit. Given my feelings about the benefits of the outsider’s perspective, it’s not hard to see how I was hooked by the opening paragraphs:

Carter Phillips remembers how his patent litigator friends reacted when he asked the U.S. Supreme Court to do away with automatic injunctions upon findings of patent infringement.

“The look of horror and dismay in their faces was startling, because ‘it’s always been that way at the Federal Circuit,’ ” the Sidley Austin partner recalled.

But the Supreme Court shocked the patent bar in 2006 by ruling in eBay v. Merc Exchange that traditional rules of equity apply. Phillips believes his perspective from “outside the fraternity” of patent lawyers helped win the case.

Talk about your outsiders! But it gets better, with a statement from another practitioner, Joshua Rosenkranz, that might appear self-contradictory in the abstract:

“I feel very strongly that you need to start at ground zero with any court and explain to them the technology and explain why the rules that you’re advocating make sense,” Orrick’s Rosenkranz said.

“Ignorance,” he said, “is strength.”

That might be going a little too far in some cases. Ignorance is not so much strength that an appellate lawyer should necessarily venture into completely unfamiliar and specialized territory. It’s worth noting that all of the lawyers profiled in the article work closely on the appeals with the patent litigators — the kind of “team up” approach I advocated in a post long ago in other substantive areas of the law where the trial lawyer is a specialist. One featured practioner notes that each new case makes him feel “dumb” until he reaches an epiphany. Another notes, “[Y]ou have to be unafraid to ask the stupidest questions.”

So if you’re a trial lawyer who thinks your prospective appellate counsel just doesn’t seem to know the field as thoroughly as you’d like as quickly as you’d like, consider that may not be such a bad thing. I’m not saying, of course, that you should trust an appellate attorney who can’t seem to grasp even basic concepts in your specialized area. But your prospective appellate counsel’s intellectual curiosity, even if it appears to betray a lack of expertise in nuanced areas of the substantive legal field or technology at issue in a given case, may be a manifestation of the outsider’s perspective that is so valuable in an appellate counsel. You might be surprised at how that appellate lawyer can shake things up with imaginative, creative — and winning — arguments.

Justice Kennard retiring April 5

Justice Joyce Kennard has announced her retirement from the California Supreme Court effective April 5, on which she will mark the 25th anniversary of her appointment. The article at the San Francisco Chronicle gives people a glimpse into  Justice Kennard’s drive and perseverence:

Kennard was born in the East Indies and, as a child, was held along with her mother in a refugee camp in Java during World War II. They moved to the Netherlands after the war, and as a teenager Kennard had a leg amputated above the knee after developing a tumor.

She came to the United States in 1961, found work as a secretary, and put herself through college and law school. After a stint in the state attorney general’s office, she was named to a Municipal Court in Los Angeles by Gov. George Deukmejian in 1986. Three years later, he named her to the state’s high court.

Her official bio is here.

Given that Justice Kennard cited her desire to get back to “long-neglected friends” after years of seven-day workweeks, and that her retirement letter ended on a poetic note, the fond farewell I learned at the Naval Academy seems appropriate, regardless of whether she is  sailor: May you have fair winds and following seas, Justice Kennard.

The law, the story, and the policy

Almost sounds like the beginning of a joke, doesn’t it? (A law, a story, and a policy walk into a bar . . . )

But I’m not presenting these things as a joke. According to San Diego antitrust attorney Jarod Bona at the Antitrust Attorney Blog, these are the Three Components of Every Effective Appellate Argument. I agree with a lot of his post, but I especially like this sentiment near the end (emphasis mine):

To [combine these elements] effectively is not easy. It is an art form and requires careful thought and attention. But when it is done right, it is beautiful.

Amen!

How to write for the “iPad judge”

No brief would look good on my pathetic iPad, which has some of the pieces of its broken screen held on with tape!

Are a lot of appellate judges/justices reading briefs on iPads these days? The Columbia Business Law Review recently published a short piece called Writing a Brief for the iPad Judge (on the journal’s online “announcements” page, which looks like the rough equivalent of a blog), which states that “a large and growing percentage of briefs are read on iPads” and offers advice on how to prepare a brief to make it iPad friendly.

As you might expect, the advice is not about content, but about how to present the content in a format optimized for reading on an iPad. “A brief written to be read on an iPad should differ from one written for text in three main ways: it should use fewer footnotes, should use a different font, and should avoid confusing hierarchical organization.” Okay, I already minimize my footnotes, I can use whatever font works best, but that last tip — “avoid confusing hierarchical organization” – sounds like trouble to me:

Perhaps most importantly, briefs written for iPads should avoid the traditional legal hierarchical headings: Part I, Section A, Subsection 1, etc. When flipping though a paper brief, a reader can physically feel if they are near the beginning or end and correctly guess if the Section A they are reading is I.A or VII.A. For digital readers, however, every A looks the same. This provides a strong reason to depart from tradition and use “scientific” numbering: Part 1, Section 1.1, Subsection 1.1.1. While some argue that scientific hierarchical headings are always superior, when writing for the screen, the case is even stronger. (As an added advantage, the scientific hierarchy avoids the confusion about what to call a “ii”). The same considerations, according to Ilene Strauss, Director of Columbia Law School’s Legal Writing Program, also emphasize “the need to use effective headings,” which can help “keep a reader on track within a smaller screen.”

I think it would be far better to use the usual numbering system. For one thing, I think the “problem” identified is a mythical one. The reader of a physical brief might be able to estimate quickly whether the Section A on the page is under heading I, II, III or IV, and lose that advantage in an eBrief, but so what? What’s important about the superior heading is not its number, but what it says. Thus, it is the ease of actually finding the superior headings that is important. Whether in a physical brief or an eBrief, it’s easy to bookmark the table of contents and locate the superior headings easily. I have never liked scientific numbering because it doesn’t take too much depth to make the numbering unwieldy. ”1.1.1″ is a lot more cumbersome than a single character, and 1.1.1.1 is worse. I would hate to see courts mandate scientific numbering.

The piece has some links to some other fun reading, too, including this coverage of the Fifth Circuit system for electronic briefs, in which the court does all the work of hyperlinking to authorities (and soon, hyperlinks to the record) rather than requiring the submitting party to do the work before submitting the brief.

Make the argument yours, not someone else’s

You represent an appellant in a state court action who claims the action is precluded by a prior federal court action because the plaintiff split his cause of action between the two lawsuits. Your first argument is under the longstanding “primary rights” standard applied by the California courts. Your second is that the court should apply the federal “transaction” standard, which is far more favorable to your position. Only one standard can apply, and you are asking the appellate court to apply a federal standard not previously applied by the California courts. Throw into the mix the fact that the continuing vitality of the California “primary rights” standard was recently reaffirmed by the California Supreme Court, and you can see you’ve got your work cut out for you.

That is the uphill climb that appellant faced in FujiFilm Corp. v. Yang, case no. B243770 (2d Dist., Jan. 24, 2014). The Court of Appeal rejects the invitation to apply the federal “transaction” standard and holds that under the California “primary right” standard, there was no splitting of the cause of action, and thus no preclusion.

One can debate the best way to argue for application of the federal standard — if at all — in such circumstances. Perhaps unique underlying facts or the federal-state dichotomy between the two actions would give an opening to argue that the federal standard should be applied in this particular instance. But nothing like that is mentioned in the Court of Appeal’s rather uncharitable assessment of the appellant’s effort (emphasis mine):

Appellant urges that we apply the “transaction” doctrine of federal law, instead of California’s primary rights theory, to find Fuji wrongfully split its cause of action. We need not linger on appellant’s request, however, because she does not cite any California authority applying the transaction doctrine to define a cause of action. Instead of pertinent case law to support her position, her appellant’s brief relies solely on an eight-and-a-half page block quotation from a 15-year-old law review article. But our Supreme Court as recently as three years ago affirmed that the primary rights theory applies in California. [Citation.] We are not free to depart from binding Supreme Court precedent, and we decline appellant’s invitation to make new law by adopting the federal transaction doctrine. [Citation.]

That’s some quotation!

Was the appellant just trying to tee the case up for review by the California Supreme Court? We’ll see. I’ll update this post if a petition for review is filed.

UPDATE (3/28/2014): The remittitur issued today. No petition for review was filed with the Supreme Court.

Know your route of review . . . and when to invoke it

If you don’t know your route of review and when to invoke it, you end up like the plaintiff in Tejon Real Estate, LLC v. City of Los Angeles, B247255 (2d Dist. January 23, 2014). In fact, not only did that plaintiff fail to seek review properly, it never even got a final determination subject to review.

The plaintiff wanted to build a residence on a vacant lot and received an informal opinion from the fire department that it could  not build a residence unless a fire hydrant was installed within 300 feet of the property. It then got  an estimate from the city Department of Water & Power (“DWP”) that extending the water line and hydrant would cost the plaintiff $77,000.

Plaintiff filed a declaratory relief action seeking an interpretation of DWP rules regarding the extension of existing water lines. When the city demurred for failure to exhaust administrative remedies and contending that any administrative decision should be reviewed by writ of mandamus rather than a declaratory relief action, the trial court sustained the demurrer and the plaintiff appealed:

The sole cause of action in appellant’s complaint was for declaratory relief. Appellant contends (1) that it “completed the application process for water service” and received a “final determination,” and (2) that it is, therefore, entitled to a declaration interpreting the pertinent rules and regulations under Code of Civil Procedure section 1060. Appellant is incorrect on both counts.

Regarding point (1), however, appellant admitted:
that it did not prepare or submit plans or seek a building permit which would have provided an opportunity for all the relevant City departments to determine precisely what conditions to impose under the City’s various building and safety provisions before appellant could commence construction of the proposed residence.
Thus, plaintiff could not rightly claim to have obtained a final determination:
Here, appellant was provided preliminary opinions and estimates from City personnel. Appellant did not receive a final determination from the City and cannot say with certainty what charges will be imposed or conditions enforced once the City has rendered its final decision based on specific plans for construction. It would be premature for a court to step in at this point before the City has had an opportunity to interpret its own rules and building requirements.

Plaintiff would have been sunk even if it had obtained a final administrative determination, though. Because plaintiff sought a declaration as to how the rules were applied to a particular parcel, it had no right to have the matter decided by a declaratory judgment action. Rather, it should have obtained the final determination and, assuming it was aggrieved, petitioned for administrative mandamus under Code of Civil Procedure section 1094.5.

Plaintiff at least mounted an effort to get around the requirement of a final determination, claiming that exhausting administrative remedies would be futile. It’s a mystery why plaintiff thought a declaratory relief action was appropriate, though, because the opinion never explains the plaintiff’s basis for that position, except the bare assertion that plaintiff was entitled to seek declaratory because of the phantom final determination.

Emotional interest falls short of legal standing to appeal dependency ruling

As a general rule, only a person “aggrieved” by a judgment has standing to appeal from it. Is a mother without reunification services “aggrieved” by a judgment granting her 18-year-old child’s request for the termination of dependency jurisdiction? The Court of Appeal answers “no” in In re J.C., case no. G048720 (4th Dist. January 21, 2014), and dismisses the appeal.

J.C., the child of divorced parents, had been living with her father before being declared a dependent of the court a few months after her 15th birthday, when the court found that her father failed to ensure she attended school or get treatment for a psychiatric condition. After treatment at a facility, J.C. was placed in foster care and continued to improve. On her 18th birthday, she asked the court to terminate dependency jurisdiction (though she could have remained a dependent until age 21) so she could return to living with her father. Her mother appealed.

Emotion naturally runs high in dependency cases, but standing based on emotional concern for a child is not enough to confer legal standing to appeal:

Mother asserts she has standing because the termination of jurisdiction resulted in J.C. living with father, and mother worries father will neglect J.C.’s psychiatric treatment, which will damage mother’s relationship with J.C. That interest, while perfectly understandable on an emotional level, does not confer legal standing.

The court does not casually dismiss mother’s interest here. The opinion walks the reader through the standing analysis rather clearly, starting with the proposition that while standing to appeal is liberally construed, only a person “aggrieved” by a decision may appeal from it. That requires a court to “precisely identify [the appellant's] interest in the matter.”

The court noted that a parent’s interest in the companionship, care, custody and management of a child “is no longer paramount” once reunification services end; at that point, “the focus shifts to the needs of the child for permanency and stability.” Mother this faced an uphill battle to prove standing because her interest had been “significantly reduced” upon the termination of reunification services

But it was the fact that J.C. had turned 18 that ultimately precluded standing. The Court stated that J.C.’s decision to ask for termination of dependency jurisdiction was an exercise of her “rights and responsibilities that come with adulthood” and thus not subject to parental oversight — a point illustrated by the fact that mother was not even entitled to notice of the hearing on J.C.’s request for termination of dependency jurisdiction.

Why Some Lawyers and Their Clients are Reluctant to Engage Appellate Counsel, Part 5: The Client’s Perspective

For those of you wondering, yes, this is a resumption of a series of posts I wrote years ago on reluctance to engage appellate counsel. (You can read the whole series here.) I was reviewing that series this morning to develop some marketing ideas, and saw some ideas I want to develop further.

My earlier posts cited many reasons that attorneys might not involve appellate counsel, but never really expanded on some of the reasons that clients might not do so. I listed such reasons early in the series, which I repeat here:

  1. “I can’t afford an appeal.”
  2. “An appellate lawyer will just try to talk me out of making the argument I want to make.”
  3. “Why should I pay a second lawyer?”
  4. “The case is hopeless.  Why even try?”
  5. “My lawyer won at trial.  Who better to fight my opponent’s appeal?”
  6. “Even if I win the right to a retrial, that trial judge will just find some other way to screw me.”

Subsequent posts will explore these reasons, and possibly others, in detail.

I suspect that the principal reason any client raises one of these objections is because her trial attorney never explained how the appeal differs from the trial court proceedings. It is important for attorneys to educate their clients about those differences in any consideration of an appeal, even if the trial attorney plans to handle the appeal himself. I believe that a properly informed client would demand the engagement of appellate counsel, even if the client otherwise has full confidence in her trial lawyer. I will try to make my case on this in subsequent posts.

Again, you can read the earlier posts in the series here, or click on a link below to go to a specific earlier installment:

Series Announcement: “Why Are Some Lawyers and Their Clients Reluctant to Engage Appellate Counsel?”

Part 1: Categories

Part 2: “It’s just litigation”

Part 3: “No one knows the case better than I do.”

Part 4: “This Case Needs a Specialist.”

Suggestions for future installments are welcome. You can make suggestions by leaving a comment on this post.

A novelist/academic’s views on persuasive writing

A lawyer in one of my LinkedIn groups alerted the group to an interesting article that gives a non-lawyer’s perspective on persuasive writing. Introducing the article, St. Louis attorney Daniel Schramm notes:

When I was a law student, we were taught how “to write like a lawyer.” This article suggests lawyers would be better served if they follow the modern trend to make arguments simple and easy to read.

At first, this did not make sense to me. “Writing like a lawyer” and “simple and easy to read” are not mutually exclusive concepts, and any lawyer who thinks they are is in big trouble. But after reading the article, I realized Schramm was not asserting such a dichotomy, but something else.

The article itself is from legal writing guru Bryan Garner, and excerpts his interview of writer David Foster Wallace. From the Wikipedia page on Wallace:

David Foster Wallace (February 21, 1962 – September 12, 2008) was an award-winning American novelist, short story writer, essayist, professor of English at Illinois State University, and professor of creative writing at Pomona College. Wallace is widely known for his 1996 novel Infinite Jest, which was cited as one of the 100 best English-language novels from 1923 to 2005 by Time magazine.

From the article, here is just a part of Wallace’s advice on what the “middle” of a persuasive piece should do (my emphasis):

The middle should work. It lays out the argument in steps, not in a robotic way, but in a way that the reader can tell (a) what the distinct steps or premises of the argument are; and (b), this is the tricky one, how they’re connected to each other. So when I teach nonfiction classes, I spend a disproportionate amount of my time teaching the students how to write transitions, even as simple ones as however and moreover between sentences. Because part of their belief that the reader can somehow read their mind is their failure to see that the reader needs help understanding how two sentences are connected to each other—and also transitions between paragraphs.

That got me thinking about the function of argumentative headings in appellate briefs. Do lawyers use argumentative headings to fulfill this “connecting” function? Should they?

Argumentative headings obviously need to be more than “connectors.” In fact, California court rules require that each argument be identified in a heading, lest it be deemed waived. One bit of advice most of us learned in law school is that headings should be written so that the table of contents alone is persuasive. Does that mean they should serve as transitions, too?

Maybe not.  Wallace’s comments suggest an exercise for evaluating your brief, which is the opposite of looking at the table of contents alone (and this, I think, is what the LinkedIn poster meant): if you stripped the argumentative headings out of your brief, could your reader still see the connections among your arguments?

I’m not sure that the answer has to be “yes” in every case. After all, most writing maxims have some elasticity. Writing as if argumentative headings aren’t there might actually be counter-productive for some arguments. Consider, for example, an argumentative heading over a single paragraph of text. Including a topic sentence and transition in that paragraph that essentially repeats the heading might make for cumbersome reading. Maybe it’s okay in those instances for a heading to serve as both identifier and transition, without the need for a transition in the text. Then again, there may be judges out there who deliberately “read around” the headings to get a feel for your brief without them — can you risk leaving them clueless?

I haven’t really thought about this too deeply before, but I now want to try an experiment. On my next brief, I am going to ask a colleague unfamiliar with the case to read a draft that has been striped of its headings and then give me his opinion as to whether the arguments seem connected and persuasive in that form. That should be interesting.

Judgment assignees better be careful

Last month’s decision in Cal-Western Business Services, Inc. v. Corning Capital Group, case no. B241714 (2d Dist., November 6, 2013) makes for some interesting reading and a cautionary tale for those who purchase assignments of judgments.

Corning Capital found itself on the losing end of a money judgment. The original judgment creditor assigned the judgment to Pacific West One Corp., who then assigned it to the unfortunate Cal-Western. Why unfortunate? Because Pacific West One’s corporate status was suspended at the time it gave the assignment and was never revived, and the trial court held that as a result, Cal-Western lacked capacity to enforce the judgment against Corning Capital. The Court of Appeal affirmed.

One could be forgiven for being confused by this statement of the court (my emphasis):

At the time Cal-Western filed the instant action on the Judgment four years later [after the assignment], Pacific West One’s corporate powers had not been revived and it remained a suspended corporation lacking capacity to file or maintain a suit. Therefore, because a defense based on lack of capacity to sue existed at the time of notice of the assignment and could have been asserted against Pacific West One had it brought the action itself, Cal-Western was subject to the same defense in suing to enforce the Judgment as Pacific West One’s assignee.

What is one to make of that? If the the notice of the assignment is the time when capacity is determined, then why mention that the assignor’s suspended corporate status had not been later revived? Later revival would be immaterial, unless the court is intimating that that the assignor’s revival prior to the notice of assignment would give the assignee standing that did not exist at the time of the actual assignment. Is the court doing so? That seems inconsistent with its citation to

the general rule that “`[t]he assignee “stands in the shoes” of the assignor, taking his rights and remedies, subject to any defenses which the obligor has against the assignor prior to notice of the assignment.’” (Johnson v. County of Fresno (2003) 111 Cal.App.4th 1087, 1096; see also Bliss v. California Co-op. Producers (1947) 30 Cal.2d 240, 250 ["an assignee of a chose in action is subject to all equities and defenses existing at or before the notice of the assignment"][.])

What about other scenarios? For example, if if a corporate assignor is in good standing at the time of the assignment but is suspended by the time notice of the assignment is given, does the assignee have standing?

Maybe there are cases definitively answering these questions.  But caution should be the watchword for those purchasing assignments of judgments. Any assignee who purchases a judgment from a corporate assignor better be careful about confirming that the assignor is a corporation in good standing at the time of the assignment and then serve notice of the assignment immediately, before that status can change. Some warranties and guarantees in the assignment agreement wouldn’t hurt, either.

They're capacitors, get it? Capacity, capacitor . . aw, forget it. That's what you get when your humble law blogger also majored in electrical engineering.

Arbitration appeals part of new AAA rules

Southern California Appellate News reports that the American Arbitration Association has released optional rules that will allow appellate review within the arbitration process for arbitrations conducted under AAA rules. From the AAA press release:

AAA President and CEO India Johnson explains that traditionally, an arbitration award is set aside by a court only where narrowly-designed statutory grounds exist. These new rules provide for an appeal within the arbitration process and are consistent with the objective of an expedited, cost-effective and just appellate arbitral process. Ms. Johnson states, “The appellate arbitral panel called for under the new rules applies a standard of review more expansive than that allowed by existing federal and state statutes to vacate an award. In this regard, the optional rules were developed for the types of large, complex cases where the parties agree that the ability to appeal is particularly important.”

Ms. Johnson expects the new optional rules will be well received by parties who desire a broader ability to appeal. “These rules and the process they govern are well thought out, practical and anticipate a process that can be completed in about three months.”

Three months! That’s really something.

See the press release for a bullet-point summary of the rules and a link to the actual rules.

A Chief’s-eye view of the California Supreme Court

Today marks the release of an interview-style memoir from former California Supreme Court Chief Justice Ronald George, Chief: The Quest for Justice in California. A front-page article in today’s Los Angeles Times gives you a glimpse into a few themes in the 822-page book. One: a court funding crisis — though not of the same magnitude as the one faced today — was never far off at any given time:

When Ronald M. George served as chief justice of California, he pleaded annually with legislators for money to run the courts, warning the loss of funds would compromise justice.

But he said he learned that some lawmakers took positions on the budget for purely personal reasons, obsessively discussing their divorces or traffic tickets and punishing the judiciary for rulings they did not like.

“I remember dealing with one state senator who found it impossible … not to bring up his own divorce proceedings and how he thought he’d gotten a raw deal at the hands of his wife and her attorneys and didn’t feel the court system dealt with him fairly,” George said, not naming the elected official.

This book should have been released on Halloween, because that is really, really scary.

UPDATE (11/7/13): Southern California Appellate News has information on a book signing scheduled at UC Berkeley next week , and The Recorder provides another summary of the book.

The limits to switching gears on behalf of a minor on appeal

A pre-teen in a juvenile proceeding has counsel appointed for her in the trial court (the counsel is also appointed as her guardian ad litem). Her counsel argues at the dispositional hearing that the minor’s repeated hospitalizations are due to mother’s refusal to acknowledge the seriousness of the minor’s diabetes diagnosis or appropriately monitor her treatment, and the trial court removes the minor from her mother’s custody.

The mother appeals, and appellate counsel is appointed for the minor. The minor did not appeal, and you would think the minor’s position is pretty well solidified at this point, right?

Wrong. Or may, “it all depends.”

On the appeal In re Felicity .S, case no. A137439 (1st Dist. Oct. 31, 2013), the minor’s appointed counsel on appeal reversed course completely. The minor’s appellate counsel asked for more time to file her appellate brief, then filed a whopper of 75 pages that, instead of focusing on “how the issues raised by the mother’s appeal impacted the minor’s best interests,” instead backed up all of the mother’s arguments, without offering any explanation for the change in course.

In a huge understatement, the appellate court stated that the attorney’s “failure to provide any explanation for taking a position conflicting with that taken by the minor’s trial counsel is highly problematic.”  So, the judge asked the attorney for a declaration explaining her reasons for the about-face. The Court of Appeal found her 25-page declaration unconvincing, to say the least. She stated she spoke with minor’s trial counsel, but did not give the substance of the conversations or even claim that trial counsel recommended the change in position.

But wait, there’s more! The attorney tried to “backdoor” new issues into the appeal, outside the scope of those raised by the mother, her declaration and despite the fact that the minor had not even appealed.

In sum, we conclude that when this court exercises its discretion to appoint counsel for the minor in a situation where the minor has not appealed, it is improper for the appellate counsel to reverse the position taken by minor’s trial counsel without authorization by the minor’s guardian ad litem and/or without an explanation as to how the reversal of position is in the child’s best interests. When, after careful analysis of the record and briefs of the parties, minor’s counsel fully adopts the arguments of a party to the appeal, preparation of a full statement of the case and repetition of that party’s arguments will rarely be helpful to the court or serve the best interests of the minor.

(Footnote omitted.) These limitations hardly impose a straightjacket on appointed counsel. The court explicitly left open the possibility that such reversals of position might be justified; they just have to be adequately explained.

Four added to pool of prospective First District Justices

The Recorder reports on three judges Governor Brown has asked to have evaluated for vacancies on the First District Court of Appeal.

Brown has asked the State Bar’s Commission on Judicial Nominees Evaluation to vet San Francisco Superior Court Judge Marla Miller, Contra Costa County Superior Court Judge Diana Becton and ACLU staff attorney Linda Lye for openings on the San Francisco-based appellate court.

Therese Stewart of the San Francisco city attorney’s office is also being evaluated by the commission.

Of course, everything will remain up in the air for a while.
Submission of a name to the commission usually indicates serious interest on the governor’s part, though there are now only two vacancies on the First District, and other prominent judges and attorneys are said to have expressed interest.
See the article for some background on these candidates.

The secrets to using humor in the courtroom

There aren’t any. Well, maybe one: don’t do it. (Though, as you’ll see below, not everyone agrees.)

On the “don’t do it” side is Litigator Rex. Via a post at Southern California Appellate News, I ran across Litigator Rex’s post counting down ”Argument Misdemeanors – Five Ways to ruin your oral argument.” The countdown starts with this no-no:

5. Familiarity or humor. The judges are not your friends, they are an institution. While judges have their own personalities, foibles and attitudes on the bench, the role they play in the system demands a certain level of decorum.  Charm, humor, or insouciance rarely work and often irritate the judges. This informality not only comes across in the spoken word but also through your actions, leaning on the lectern, body language, standing to the side of the lectern or podium, all convey an air of inappropriate informality, which can cross the line into disrespect, whether intended or not.

This is not to say you should be rigid, impassionate or humorless, but there is a level of formality that should be respected.  Resist attempts at humor, especially if it’s “off the cuff.”  Remember, you are not as charming as you think you are nor as funny.  Stick to the facts and the law: get the job done.

I know only one lawyer who has a recurring tendency to go against the tide of advice regarding humor in the courtroom. Marty Rudoy, a California attorney, was a stand-up comic and wrote jokes for the likes of Jay Leno, Arsenio Hall and George Herbert Walker Bush (yes, President 41). As such, Marty is wont to run the risk of telling a joke or two in the courtroom. He’s got some advice for potential stand-up litigators: know your judges. If it seems like your judge has a sense of humor, set it up so the judge gets a laugh first. That way, the judge establishes that he or she is human and funny, and you don’t usurp the court’s authority over the courtroom by turning it into a mini-comedy club. Once the judge gets a laugh, then you have free reign to do a follow-on joke or a tag.  Sometimes, Marty plans it so that the judge’s joke sets him (Marty) up for a short routine. Having a sense of humor, Marty says, humanizes the attorney, too, and can make you more likable (and more  credible) than your dour opposing counsel.

Another thing Marty does is insert humor selectively in his legal briefs. “Judges like reading interesting observations and wry asides.  I know it works, since at oral argument judges ask me about the things I bring up, whether it’s a Shakespearean reference or a quote from the Art of War. Its all got to be in context, though, and reinforce a point you’re trying to drive home in the brief.”***

Something funny in The Art of War? I didn’t realize Sun Tzu was such a cut-up. I read Sun Tzu when I was a Marine officer, but I thought National Lampoon was funnier. (Insert rimshot here.)

So, in closing . . . a judge, a prosecutor, and a criminal defense lawyer walk into a bar . . .

***I know, I know, half of you are wondering why I wrote “free reign” instead of “free rein,” and the other half thinks the first half is crazy. As a budding equestrian, I would ordinarily go with “rein,” but used “reign” to illustrate the point that even though one form is apparently correct and the other is not, that apparently that doesn’t matter much anymore.

Some appreciation for the appellate courts

The U.S. Chamber of Commerce’s Institute for Legal Reform has released a 158-page report called ”The New Lawsuit Ecosystem: Trends, Targets and Players” (which I learned about through a piece at The Recorder giving a detailed summary of the report). The Institute succinctly describes the report this way:

This report examines the developing “ecosystem” of the plaintiffs’ bar, including litigation trends, key lawyers and target industries. The report also looks beyond litigation to examine how the plaintiffs’ bar is attempting to influence public policy and implement a liability-expanding agenda. In addition, the report explores the growing alliance between the plaintiffs’ bar and some state attorneys general.

What’s all that got to do with appreciation for the appellate courts? Well, it seems to me from my skim of the report that the Institute, at least implicitly, is praising the appellate courts whenever they serve as a brake on what the Institute sees as an out-of-control plaintiffs’ bar. The  report notes, for instance, where appellate courts knocked down class action settlements that, in the eyes of of the Institute and the appellate courts, enriched the attorneys way too much in light of the small benefits to their respective classes. It also notes that only five of 15,000 welding fumes cases resulted in judgments for plaintiffs, and that the appellate courts knocked down three of those five. I’m convinced that “Take that, plaintiffs’ bar!” was included in an earlier draft of the report but was edited out by cooler heads.

Not that the Institute is without its gripes. It notes that some appellate courts have approved other attorney-enriching class settlements, and when it writes in a heading that “Washing Machine Cases Suggest Lower Courts Aren’t Hearing What The Supreme Court Is Saying,” it is not just talking about trial courts. The referenced “lower courts” include two federal circuit courts that the Institute apparently feels were too lax in upholding class certification.

Overall, its seems that the institute views the appellate courts as a mixed bag, but at least sees business interests as having a fighting chance there of stopping trends that the Institute finds worrisome. On the other hand, the report’s negative tone toward the plaintiffs’ bar makes everyone else mentioned in the report look good.

Judge’s disqualification results in new trial for failure to issue a statement of decision

Appeals based on a trial court’s refusal to issue a statement of decision require some soul searching. Usually, a successful appeal will merely result in the case being remanded to the trial court to issue a statement of decision, and the successful appellant may find himself no better off than he was before.

But what if the judge that tried the case is not available to issue the statement of decision? In Wallis v. PHL Associates, Inc., case no. C066545 (3d Dist., October 17, 2013), you will find out. The judge who conducted the bench trial in Wallis was peremptorily disqualified after the bench trial. Since he was thus unavailable to prepare a statement of decision, the Court of Appeal decides that “the only appropriate appellate remedy in this case is a remand for a new trial on the equitable causes of action.”

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