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.

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.

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.

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. It’s 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.

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 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.