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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Sunday
Apr132014

A Bad Court Reporter can Ruin Your Day . . . and Your Appeal

 

Years ago, I was told that the definition of comedy is “bad things happening to other people.”  In the movies, we laugh when someone takes a big tumble, but we know if we were to fall we wouldn’t want anyone laughing at us.  Not to mention the pain of falling.  Maybe that is why you see comedians taking falls, but never shedding a drop of blood. 

 Appellate law is not the most exciting area of the law.  I like to think of it as more of an intellectual exercise where you are searching for judicial error or misconduct.  It usually isn’t the stuff of exciting movies, unless Al Pacino or Gregory Peck are arguing their cases. 

 In Manhattan, the courts were faced with an odd situation.  One of their court reporters apparently had some type of breakdown, suffering from the extreme pressure of reporting cases, in this instance a high-profile criminal trial.  The New York Post reported the alcoholic court reporter wrote out his own script for the trial instead of typing the words spoken by the parties and the judge.  The reporter sat through the hearing, probably looking as normal as apple pie, and pretended to take down those words, but he was actually writing, “I hate my job, I hate my job,” over and over again.  Apparently the reporter had committed similar misconduct in some 30 Manhattan court cases.  Who would have guessed?

  The reporter’s failure to report the proceedings will have a significant impact on any appeals for which a transcript cannot be supplied.  If this problem was discovered months after the reporter took down the testimony, it may be very difficult, if not impossible, to reconstruct what was said on the stand.   The judges have been holding “reconstruction hearings” at which all those involved testify about what they remember.  Tough, because memories fade so easily, especially if you have a heavy caseload. 

  The reporter, who has since been fired and is completing rehab, denied screwing up in court.  I guess the proof is in the transcripts.  Maybe someone will testify at the reconstruction hearing that the witness actually said, “I hate my job” over and over again on the stand, without a single objection or comment from the judge.  If the reporter’s notes are only gibberish, it is going to be very tough to argue that all the witnesses in 30 cases spoke that way.

  Claudia Trupp of the Center for Appellate Litigation in New York was quoted in the paper as saying, “This situation is terrible for everybody.  It’s very difficult to come up with a sufficient record based on everybody’s recollection years after the event.”   Glad it didn’t happen on one of my appeals.

Thursday
Mar132014

Finding the Passion in Practicing Law

Last week I helped a friend with her small claims appeal.  Even though they call it an “appeal,” a small claims appeal is really a rehearing.  At the initial hearing, she lost and owed the plaintiff almost $6,000.  I thought the law was in her favor and knew if it could be carefully explained to the judge, she would win.  I also knew that I was more experienced at making those arguments, so I volunteered to represent her.  We won and she was very happy.  I have worked on cases involving many millions of dollars, but I worked on this $6,000 claim as if the same amount was at issue.  To my client, that was a substantial amount of money and I really wanted to help her.  When the judge ruled in her favor, I felt relieved and happy that I could remove the burden of this judgment off her shoulders.  Those are the times when I feel satisfied in helping people. 

Several years ago I won an appeal, Plotnik v. Meihaus.  In that case, the Court of Appeal confirmed the right of a pet owner to sue for emotional distress when another person intentionally harms or kills a pet.  It was a very gratifying win for me and I received more publicity and letters on that case than on any other case in my entire career.  Well, my 15 minutes of fame was over, or so I thought.  I recently received an e-mail from retired attorney Sandy Toye, who previously specialized in handling animal-related matters.  She wrote: 

                “A friend of mine recently informed me of Plotnik v. Meihaus.  I just wanted to thank you for accomplishing something I spent my entire professional career trying to accomplish . . . It means so much to all animal lovers and to me personally.  You are truly a hero and an inspiration.  Thank you.” 

That letter made my day and reminded me once again of why I do what I do.  There is a sense of accomplishment in being able to help people, and in this case, pets.  (My dog expects no less from me.)  Knowing there are now potential consequences (big $$$) for harming animals might dissuade some from inflicting such harm.  For that I am happy.

Monday
Feb242014

Hey, what happened to the attorney-client privilege?

In this new age of social media, attorneys have to be especially careful about protecting their communications with their clients.  I try to avoid having important or confidential communications through e-mail.  I even worry about taking my computer out of the country, knowing my e-mails and documents could be reviewed by the United States government and maybe even another government.

Was I surprised to learn that a new report leaked by Edward Snowden revealed the National Security Agency monitored communications between the Indonesian government and a U.S. Law firm that was representing that government in trade disputes with the United States?  This monitoring apparently included spying on these discussions by NSA’s Australian counterpart agency.  Is this about national security?  Doesn’t seem so.  Or perhaps it is more about economic gain for the United States?  If so, then shame on the U.S. Government. 

Maybe my cases don’t involve high level trade disputes between governments, although I have been involved in lawsuits against local governments and the United States.  How would I like to know that those communications were reviewed by the NSA?  And what can I do in the future to protect my confidential discussions with my clients.  It sound like the days of meeting clients in empty parking lots or along the river front are back.

 

Thursday
Jan022014

Starting off 2014 with some positive legal news

 

As the new year starts, we look for positive signs that the year will be a good one.  The legal community is no different.  This morning we were rewarded with two good signs:

The California Supreme Court ruled that Sergio Garcia can become an attorney despite not being a U.S. citizen.  Mr. Garcia graduated from law school and has been waiting for his green card for almost a decade. The decision was based on a new law from 2013 that permits the Court to grant such licenses.  State legislators, supported by Gov. Jerry Brown, Attorney General Kamala Harris, and the State Board of Bar Examiners, pushed through legislation at the same time Garcia's case was pending in the Supreme Court.  The Obama Administration opposed granting Garcia a license based on federal law but later dropped its opposition once the legislation was signed into law.

Last fall the case was argued before the California Supreme Court and the Court was concerned federal immigration law was an obstacle to granting Mr. Garcia's wish.  The Court invited the California legislators to fix the problem, which they quickly did. 

In the second bit of good news, a federal court judge granted civil rights attorney Lynne Stewart a compassionate release.  Stewart, 74, has late-stage breast cancer.  She served almost four years of a 10-year sentence for distributing press releases on behalf of Omar Abdel-Rahman, an Egyptian cleric, who was her client at the time.  Stewart will be able to spend the rest of her days with her family and friends.

Another hot topic is the legal production and sales of recreational marijuana, which began at the start of the year in Colorado.  People have been lining up to purchase marijuana, even those who could get it as medical patients.  One might anticipate an increase in tourism, especially during the coming ski season.  The nation will be watching to see the impact on Colorado and may possibly consider a move that will permanently end Prohibition and eliminate the imprisonment of numerous citizens.

Interesting start to 2014 . . . Happy New Year!

Saturday
Oct262013

Don't dismiss causes of action just to pursue an appeal.

In Kurwa v. Kislinger (2013) 57 Cal.4th 1097, the California Supreme Court was faced with the issue as to whether "an appeal may be taken when the judgment disposes of fewer than all the pled causes of action by dismissal with prejudice, and the parties agree to dismiss the remaining counts without prejudice and waive operation of the statute of limitations on those remaining causes of action." 

 

This dilemma often arises when the trial court knocks out a plaintiff or cross-complainant's strongest causes of action and the party has to decide whether to proceed on the remaining, but weaker, causes of action before appealing.  They may be concerned about possibly getting a poor result in the first trial, appealing, and then going back for a second trial.  When faced with this problem, attorneys have often dismissed the weak causes of action without prejudice and then appealed a seemingly "final" judgment.

 

In Kurwa, the Supreme Court noted that the one final judgment rule precludes an appeal from a judgment disposing of fewer than all causes of action between the parties, "even if the remaining causes of action have been severed for trial from those decided by the judgment."  It found that a judgment that disposes of fewer than all causes of action is interlocutory and not yet final.  The Court stated:

 

       "When, as here, the trial court has resolved some causes of action and  the others are voluntarily dismissed, but the parties have agreed to preserve the voluntarily dismissed counts for potential litigation upon conclusion of the appeal from the judgment rendered, the judgment is one that 'fails to complete the disposition of all the causes of action between the parties.' (Morehart, supra, 7 Cal.4th at p. 743) and is therefore not appealable."

 

The Supreme Court concluded that while the remaining causes of action are no longer pending before the trial court, the parties have arranged for those causes of action to be "resurrected upon completion of the appeal," thus meaning they are "'legally alive' in substance and effect.'  As such, this tactic allows the parties to "evade" the one final judgment rule.

 

A plaintiff or cross-complainant can voluntarily dismiss a cause of action without prejudice pursuant to trial, pursuant to Code of Civil Procedure section 581(b)(1) and (c), but it is the agreement to waive the statute of limitations that kept the claim alive and allowed for its later revival.  And it did not matter to the Supreme Court that the judgment did not incorporate the parties' agreement.  Nor would they consider arguments supporting appellate efficiency, noting California law does not provide for a "case-by-case efficiency exception" to the one final judgment rule, and "[w]here unusual circumstances justify it, review of interlocutory judgments may be obtained by petition for writ of mandate, but not by appeal."