Don’t get snide on appeal

Snideness is never an attractive trait, but it is distressingly common in trial court. No offense to you trial lawyers out there, but I find snideness far less prevalent in appellate practice, and, on those occasions where it does raise its ugly head, the justices seem far more hostile to it than most trial judges are.

Which brings me to a 2009 case that I ran across today, Nazir v. United Airlines (2009) 178 Cal.App.4th 243, in which plaintiff’s counsel, apparently from a solo or small office, squared up against an employment law powerhouse and not only won, but got to see the powerhouse firm spanked by the Court of Appeal as it reversed the summary judgment for the defendant employer.

Here’s your hot tip of the day: Unless you want to invite the severest scrutiny of your own papers and trial counsel’s track record in the trial court, don’t start your brief like this:

Seemingly emboldened by [the trial court's description of the plaintiff's summary judgment opposition papers], defendants’ brief here begins this way:

“As in Macbeth’s soliloquy, Appellant’s Opening Brief (AOB), like his summary judgment opposition below, is full of ‘sound and fury, [but ultimately] signifying nothing.’ Despite filing an 1894 page(!) opposition separate statement, which the trial court found … in a manner deliberately calculated to obfuscate whether any ‘purportedly disputed facts were actually controverted by admissible evidence,’ the trial court properly granted summary judgment in this case. As with Nazir’s opposition statement, his AOB is ‘mostly verbiage, and utterly lacking in the identification and presentation of evidence demonstrating a disputed issue of fact.’ ”

Uh-oh. Pot, meet kettle:

Passing over whether such disparagement is effective advocacy, the “girth” of materials before the trial court began with defendants, whose 1056 pages of moving papers were in great part inappropriate, beginning with the motion itself.

The opinion goes on to lambaste the powerhouse firm for bringing a motion outside the scope of the statute and filing papers so out of compliance with court rules that they failed to adequately inform the plaintiff of the facts supporting the motion. Indeed, the court again takes an accusation (that plaintiff’s papers were designed to obfuscate) and applies it to the defendants:

The deficiencies in the motion pale in comparison to those in the separate statement. “Separate statements are required not to satisfy a sadistic urge to torment lawyers, but rather to afford due process to opposing parties and to permit trial courts to expeditiously review complex motions for [summary adjudication] and summary judgment to determine quickly and efficiently *252 whether material facts are undisputed.” (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 335, 282 Cal.Rptr. 368.) The separate statement “provides a convenient and expeditious vehicle permitting the trial court to hone in on the truly disputed facts.” (Collins v. Hertz Corp. (2006) 144 Cal.App.4th 64, 74, 50 Cal.Rptr.3d 149.) That hardly describes defendants’ separate statement here.

Plaintiff’s counsel must have really enjoyed reading that opinion.

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