Appellate Procedure,  Briefing,  Standard of Review,  Waiver of Issues

Things You Don’t Want to Read about Your Work

I’ve been working almost non-stop for the last 18 hours, and its 3 a.m. (so pardon any typo’s), so I’m not about to plow through the 82-pages of opinions in Schmidlin v. City of Palo Alto, case no. H026841 (6th Dist. Dec. 4, 2007).  But I’m not too sleepy to browse through it, and I happened upon the “bloggable” portion.  Or at least one of them.

Its a case brought by a plaintiff who alleges various constitutional violations against city cops.  The jury finds that the cops used excessive force, but did not unlawfully arrest the plaintiff or fabricate police reports.  Both sides appealed.

Issue 1: Sufficent evidence of excessive force?  Well, not so fast.  Writes the court (emphasis mine):

Defendants assert that the evidence was insufficient to support the jury’s finding of excessive force.  At least we so construe their brief, which alludes in passing to the insufficiency of the evidence, but which is actually devoted almost entirely to rearguing the facts.

Talk to just about any appellate jurist, and he or she will tell you that trial lawyers do this all the time.  Not every trial lawyer, of course.  Not even most.  But enough to present a steady stream of attorneys at oral argument arguing passionately to the justices as if they were wearing juror badges instead of black robes.

Issue 2: Qualified Immunity?  Strike Two:

Defendants raise several arguments to the effect that the trial court erred in not sustaining their defense of qualified immunity.  As with the challenge to the evidence of excessive force, their appellate presentation is so fundamentally flawed that it is unnecessary to delve into the applicable substantive law.

The court can’t make heads or tails of this portion of the brief.

Issue 3: Is the federal excessive force claim time barred?  This time, the problem is with the dissenting justice as well as the defendants.  The court says its adoption of the dissent’s position that the court should have granted summary adjudication on the federal excessive force cause of action

is precluded by two seemingly insurmountable obstacles:  (1) defendants have expressly disclaimed any such claim of error, and (2) they never made a motion to adjudicate the “federal excessive force cause of action.”

And still 72 pages to go!