• Attorneys,  Ethics,  New Trials

    Egregious attorney misconduct at trial leads to reversal on appeal

    When I was a young lawyer, a mentor told me to practice as if the rules will always be strictly enforced against me and my client, yet never enforced against the other side. I always took that as a bit of rhetorical flourish meant to emphasize careful compliance with the rules and to be ready for anything from the other side, but my mentor’s admonition appears to have been manifest in the trial leading up to┬áMartinez v. State of California Dept. of Transportation, case no. G048375 (4th Dist., June 12, 2015, certified for publication July 7, 2015). The misconduct paid off in the short term by getting a defense verdict,…

  • Attorneys,  Juveniles

    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…

  • Attorneys,  California Procedure,  Summary Judgment

    Falling on your 473(b) sword only gets you so far

    Oddly enough, this point is made in a case where no one actually fell on their sword. The title of this post comes from my nickname for the mandatory relief provision in ┬áCode of Civil Procedure section 473, subdivision (b) (my emphasis): Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry…