Contact
  • Donna Bader
  • Attorney at Law
  • Certified Specialist in Appellate Law
  • 668 North Coast Hwy, Ste. 1355
  • Laguna Beach, CA  92651
  • Tel.: (949) 494-7455
  • Fax: (949) 494-1017
  • Donna@DonnaBader.Com

 

 

Donna Bader

Attorney at Law

Certified Specialist in Appellate Law

668 North Coast Hwy, Ste. 1355

Laguna Beach, CA  92651

Tel.: (949) 494-7455

Fax: (949) 494-1017

Donna@DonnaBader.com

 

 

 

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Monday
Apr182016

Documentary about Pakistan Honor Killings called A Girl in the River

As a writer, I search for conflict in all of my stories. If there is no conflict and the choices for the protagonist are clear, the story is not that interesting. The story instead becomes a sort of “Day in the Life” and we all know the final destination. Stories with conflict make us think.

 

The same logic applies to legal cases. If the choices are clear, then the case is an easy one to settle. In a similar vein, there is seldom just one side to a story. I often find there are more than two and quite often, the truth lies somewhere in between. Although we are taught to be zealous advocates, if we cannot see the point of view of the other side, then we will be handicapped in prosecuting our cases.  And if our clients can see the other side’s point of view, then we may be able to reach a compromise and settle the case.

 

I have long been interested in the subjects of honor killings and genital mutilation. (I know, I know, I must be fun to be around.) I recently watched a documentary about honor killings in Pakistan entitled, “A Girl in the River: The Price of Forgiveness.”  This film won an Academy Award in 2016 for Best Documentary, Short Subject.  The director is Sharmeen Obaid-Chinoy and I encourage you to seek it out.  I watched it on HBO NOW.

 

The documentary follows Saba, 19 years, who survived an honor killing attempt by her father and uncle. For years she had been promised in marriage to a young man, but the uncle intervened and claimed the young man’s family was of lower status and too poor. He said Saba should be married to his brother-in-law. Saba took matters into her own hands and asked her suitor’s family to arrange their marriage. Once she was married, the father and uncle took her home, promising on the Koran that they would not harm her. Instead, they shot her in the face and hand and left her to die in the river.

 

The father and uncle were to be prosecuted for their crimes, but forgiveness by the victim would lead to an acquittal and free them. This all occurred in a small neighborhood where everyone knows everyone else. The father and uncle believed themselves to be well respected in the community as honorable men, but the father lost that respect because he had a daughter he could not control. His belief was that he gave birth to her and raised her; therefore, he could decide who she was to marry. Because he could not control her, the family lost respect and was ostracized by the villagers. The young man’s family suffered the same fate because they took her in. That loss of respect resulted in being shut out of community affairs and, if the father went to jail, the family would suffer as he was the sole breadwinner.

 

The elders of the village intervened, even choosing a new attorney for Saba. In her heart, she did not forgive her father, but could see the damage done to two families and she “forgave” her father. That meant his release. At the time the documentary was filmed, her mother was the only natural relative who was still talking to her. Saba was pregnant and hoped for a girl. Her hope for her future daughter was that she would be able to stand up to others. While the film sheds light on the point of view of those other than Saba, it seems that the justification for honor killings is not so much the loss of respect, but more importantly, the view that women are second class citizens whose desires and dreams are secondary to those the father who raised them and provided a home for them. More than 1,000 women in Pakistan suffer honor killings every year.

Wednesday
Apr062016

Can I use the bathroom, please?

What is happening in this country? Following the acclaim of Transparentwhich portrays the lives of transgender people and their families, and after Caitlyn Jenner “came out,” we have witnessed greater public awareness, and hopefully, greater acceptance of transgender people. One giant step forward.

In 2016, North Carolina Governor Pat McCrory signed into law the Public Facilities Privacy & Security Act, which restricts the rights of gays and transgender people. A giant step back, way back. The law bans any local nondiscrimination laws, which appears to be a state response to the City of Charlotte’s legislation that sought to protect transgender people from discrimination. The new law also bans transgender people from using bathroom facilities that match their gender identities, rather than their biological sex.

Think of what that means. Let’s take a transgender person who is born with male genitalia but identifies as a woman. If that person desires to live her life as a woman, or is preparing for sexual reassignment surgery by living as a female, then that person is forbidden from using a women’s bathroom in North Carolina. What options are left? Going into the men’s bathroom dressed as a female? 

Not only would that be very uncomfortable for the person, but it puts her at risk for violence against her by those who might be offended by her sexual orientation. If a “man” walked into a public bathroom for women, I might be a little surprised, I might even suspect he made a mistake, but I would not want to harm him for that choice. But there are others who would and have. Should people risk their safety, or even their lives, to go to the bathroom?

The next choice, which might avoid some embarrassment, is to find a spot behind an alleyway or a port-a-potty to, relieve themselves. That might also put the person at risk if she is observed trying to pull her pants down in a public location.

How far do we go with this? If a mother has a male child, is she now forbidden from taking her child into the bathroom because the women’s bathroom does not match the male’s gender identity? Would that mother have to risk sending her child off for an unmonitored visit to the men’s bathroom? And what is a poor father to do with a female child . . . beg some strange woman to take his daughter into the bathroom?

What is the fear that is behind this? Does anyone really believe that the transgender person is conniving to get into a bathroom so she can spy on other women in closed stalls? Does this fear arise from some perceived sexual threat that the transgender person wants to hit on women in public toilets? The truth is much more obvious . . . the transgender person simply wants to go to the bathroom and not risk his or her life by doing so. They are not there to engage in sexual activities. Have our fears really taken us to this level of trying to stop others from exercising a basic bodily function? Yes, a giant step backward.

Obviously, I am not the only one to protest such legislation. PayPal had plans to open a global operations center in Charlotte, but decided against the move, declaring the new law “discriminatory.”  As a result, the city will not have 400 jobs it might have had. Other corporations, such as American Airlines, Google, Biogen, Dow Chemical, Red Hat, Wells Fargo, Lowe’s, Facebook, Twitter, IBM, Yelp, Salesforce.com and Apple, are also protesting, along with 100 companies. Even the NBA has threatened not to allow the state to host next year’s all-star game. Other states and cities have issued travel bans that bar government employees from non-essential travel to North Carolina. 

Representative Paul Stam, who sponsored the bill, defending it, saying, “We’re trying to protect the reasonable expectations of privacy of 99.9 percent of our citizens, who think when they’re going into a restroom or a changing room or a locker room, that they will be private.” Oh, really?  In a public bathroom? Those people certainly can’t have an expectation of privacy from same sex members.  And what if those same sex visitors to the bathroom just happen to be gay? I think what Mr. Stam is really saying is that those using the bathroom will only encounter same sex members who have no sexual interest in them. The sexual element cannot be eliminated. The implication is that transgender individuals only want to visit a bathroom as sexual predators. One would think that we might have gotten beyond stereotyping individuals based on sexual orientation.    

Tuesday
Feb162016

The impact of Scalia’s death on our future

               If you thought the upcoming election could not get any more heated, rest assured, it will.  Up to this point, the debates have provided more entertainment than several episodes of Curb Your Enthusiasm. (Okay, well maybe it is a close call.)  When the presidential candidates for each party are selected, the election will take on an even greater significance.  Why?  The death of Justice Antonin Scalia has changed the political landscape in a way that no one could have envisioned.

               Scalia was active in leading the conservative agenda of the Supreme Court.  As noted by legal commentator Bill Blum inTruthdig, “Scalia was also an unvarnished intemperate and intolerant ideologue, raising against same-sex marriage, voting rights, Obamacare, affirmative action and other progressive caused.”  Honestly, I cannot say I liked his politics at all.

               The impact will be felt by the United States Supreme Court, which has a number of important cases pending before it, including affirmative action, abortion, birth control, immigration, etc.  Anticipated 5-4 rulings from the conservative majority will be transformed into 4-4 stalemates, which leaves the lower court’s rulings intact.  The Court could order argument of cases where it is even split.   

               The next area of impact will be in selecting a successor.  Obama has indicated he intends to name a successor, but it is unlikely that the Senate will confirm any choice he makes.  That leaves the slot open for the next president to fill.

               The next president may have the opportunity to name two or even three justices.  Scalia’s passing will make that right a key issue in the presidential elections.  Each party will be pressing for heavy voter turnout in an effort to control the politics of the Supreme Court.  Unfortunately, that is the sad fact that the composition of the Court serves political agendas. 

Monday
Feb082016

ORAL ARGUMENT IS FUN ......NOT

       This is my life shortly after I receive the calendar notice for oral argument:  I clean the house, start a new bag of goodies for Goodwill, and tackle tasks that I’ve put off for months. About that time, my patient boyfriend notices I am cleaning all around him and things are disappearing. After a few questions about where is his this or that, he asks, “Do you have an oral argument scheduled?”

               Some of my colleagues tell me how much they enjoy oral argument. Should I believe them? If I do, it is not because I can share those feelings. They are foreign to me as that is not my experience. Okay, let me just say it . . . I don’t believe them. 

               Oral argument is an abnormal event. I am removed from my comfort zone and forced to wear a suit when I would feel much better in pajamas. I have to say nice things, like “Mr. Jones is in error” or “Mrs. Smith overlooked this fact,” when I want to yell out, “My opposing counsel and his/her client are liars, plain and simple.” Except I never say such nasty things, I can only think them. I also try to be informative because I think the Court may need my help. (I am not delusional; I am just using positive affirmations. 

               It was so refreshing to read Justice Bedsworth’s latest column in the February 2016 issue of the Orange County Lawyer.Seems like he is no fan of oral argument either. He says it is “freaking hard.”  He writes: 

               “The job requires that you understand a half-dozen cases a day well enough to discuss them with people who know them inside out . . . And I not only have to listen to their explications, I have to be satisfied that I understand them well enough to make a decision about their correctness.”

               He then writes about attorneys who “throw in something you haven’t heard before – at least not in those terms – and you have to be able to integrate that into the story and challenge it if it doesn’t fit.” Sorry to do that, but I do want to get the Court’s attention. I don’t think it would work if I said the same thing I said in my briefs. And the Court just doesn’t like repetition.

Justice Bedsworth concluded by saying – in a footnote, which is something I try very hard to avoid in briefwriting – that “if you think your arguments are as entertaining as Modern Family, you’re in need of professional help.”  Oh, that really does hurt the ego! 

Monday
Jan252016

6 More reasons Not to Appeal

 Continued from last post

5. There is an attorney’s fee provision in the contract or statute.

Attorney’s fees can be a major expense in a lawsuit. When an attorney first tells a client that the prevailing party can win attorney’s fees, it is just an abstract concept. In my experience, the clients don’t seem to pay much attention to it, first because they believe they will win and they will get the fees. Since no amount has been awarded, the client cannot envision how high fees can go. While there may be a limit, attorney’s fees can be very high and represent more than the actual award.

The same can be said for costs. The costs of litigation are very high these days. That is one reason clients will opt for mediation and settlement. Every case now seems to require one or more experts. The charges can be astronomical and most clients are unable to pay for all of the costs. The loss of a case with high costs could and has bankrupted attorneys. Attorneys have to be careful in selecting cases where they are required to advance costs.

When a client comes to me with a case involving an attorney’s fees provision, I tell them that if they lose, they may end up paying the other side’s attorney’s fees on top of mine. If they take my fees and double them, even adding in 10-20%, then that is what the appeal may potentially cost. If they are not in a position to take that risk, especially given the odds against them, they should stop the appeal.

6. The record is not adequate to show judicial error.

The appellant has the burden of showing judicial error on an adequate record. (Iliff v. Dustrud (2003) 107 Cal.App.4th 1201, 1209.) If the record doesn’t show the error, stop right now. If you have a substantial evidence challenge, but no record of the trial court proceedings, you are probably done. You may consider a settled statement, but it is generally doubtful you can file a statement that would support a substantial evidence test. The settled statement is an inferior replacement for a full reporter’s transcripts. You have the burden of showing judicial error. If you cannot, then your appeal is a waste of time.

 

7. The error is harmless, not prejudicial.

Plenty of mistakes can occur during a trial. After all, attorneys are human and so is the judge, who must make snap decisions from the bench. Can you imagine how long a trial would be if the judge had to call a recess to research every objection or point of law?  To rise to the level of a meritorious appeal, you must have two things: judicial error and prejudice. If the error does not affect the party’s substantial rights and will not change the ultimate outcome of the case, then an appeal is a waste of time. (C.C.P. § 475; California Constitution, article VI, section 13.)

 

8. The client does not have the emotional stamina to appeal.

Litigation is an endurance sport that requires plenty of stamina. Some clients cannot escape the cloud of litigation. I have had clients come in with transcripts that have hundreds of post-it notes and multi-colored tabs. I have had married clients who spent a lot of time fighting over the litigation: one wanted to call it quits, the other wanted to fight until the end of time. Litigation can cause the break-up of a marriage or irretrievably damage relationships. I have even advised some clients to seek counseling during the appellate phase because they need to prepare themselves for some sort of closure in the event they don’t receive a favorable result.

9. The judgment is not automatically stayed and the client cannot afford a bond.

Pursuant to Code of Civil Procedure section 917.1, money judgments are not automatically stayed on appeal and require a bond or undertaking to stay enforcement of the judgment. (See C.C.P. §§ 916-923 for circumstances where a stay is automatic.) The failure to obtain a bond to stay enforcement of a judgment can be enough to end even a good appeal. What have you gained if the respondent obtains the full amount of the judgment and then spends it before the case is reversed? Typically, the amount of the bond or undertaking must be 1-1/2 times the judgment. (C.C.P. § 917.1(b).) If no bond is posted, the judgment creditor can enforce the judgment, dragging the judgment debtor back to court for collection proceedings. Some clients may file a bankruptcy petition to obtain a stay, but this can complicate the case as well.

 

10. The client cannot afford a retrial.

Quite often, the best I can do for a client is to obtain a new trial.  If the client paid for costs plus an hourly rate, then he or she should expect to pay almost the same costs again and perhaps almost the same in attorney’s fees. The first trial may have wiped out the client, who was hoping for a big win at the end, and then has to face the possibility of a second trial. I explain to my clients that a judgment or order may close the door to trial. My job may be limited to opening the door and getting the client back into the courtroom. Unless the issue can be dealt with by the appellate court, I am not saving my clients money by appealing; I am simply giving them another chance at trial.  

 

Of course, there may be more reasons not to appeal, but these are the ten most common reasons. Share these with your client and fully explore these reasons before deciding to go ahead with the appeal.