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  • 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





Caring is an important element of handling an appeal


Last week I appeared before the Fourth Appellate District, Division Three of the Court of Appeal in Santa Ana.  This is my favorite court and I appear here more than anywhere else.  I know each justice personally and attend business functions where we socialize and talk - about things other than my cases!  It would be great to think that appearing before these justices would be a comfortable experience.  Not so, at least for me.  No matter whether I am appearing on a BIG appeal or a little one, or even I feel like I have an excellent chance of winning, I still get nervous just before "show time."  I feel the pressure of wanting to do the best job possible for my clients.


As I was waiting for the courtroom to open, I met up with an attorney who had previously pposed me on an appeal years before.  He is primarily a trial lawyer and doesn't often appear before the Court of Appeal.  He told me that these appearances really make him nervous.  He thought I should be very comfortable going forward with my argument.  Wow!  I was thinking that he is in court all the time and faces a judge, and quite often, twelve jurors.  My perception was that he should be more relaxed in facing three justices.  Interesting thing about perceptions.  We are often wrong.


As we talked, I told him my theory that an attorney can never completely eliminate that nervousness.   I think we get nervous because we care.  We might know how important a successful appeal is to our clients and we believe we are on the right side of justice.  Maybe the nervousness keeps us alert.  Of course, I don't want to ever get so nervous that I can't think on my feet.   (No, I am not ignoring those situations when attorneys get nervous because they aren't prepared.)  


That brings me to the very point that has been on my mind.  In the last few weeks I have received inquiries from potential clients.  They try to fill me in on what happened at trial but a common complaint has surfaced.  Many of these clients believe their trial attorney didn't really care about them, was not prepared, and would not listen to their input.  These attorneys were inpatient when the clients made suggestions or asked questions about the trial.  The clients felt as though the attorney was handling the case to make money, and for no other reason.


Even though attorneys might occasionally handle cases on a pro bono basis, I cannot fault an attorney who has to consider making money to pay bills and put food on the table.  I don't even think clients believe we should act solely out of charity.  But . . . I think they are entitled to be represented by an attorney who genuinely cares about their case and demonstrates that concern.  Whenever I take on a case, I have to ask myself if I care about the client's situation.  If I don't, then I am not the right attorney for the job.   Every attorney has decide if they can represent the client with commitment and caring.  If they can't, turn down the case and let someone who cares handle it.


These days, people are so disillusioned by the world around them.  Times are tough for a lot of them.  They feel betrayed on so many levels.  Finding someone who is honest and cares about their case is very important to them.  On the flip side, winning a case that you honestly care about, knowing it will help your client, is more fulfilling than winning a case where you don't.   Hearing a client's problems and forming a relationship with him or her is all about making an important connection.  That should include caring.  And letting your client know you care.



My Spreecast


 I'm going live!  Watch the first ten minutes of my interview with trial attorney Mitch Jackson as we talk about my book, An Appeal to Reason.  It was a great opportunity for me to advise trial attorneys about protecting their appeals at the trial level and avoiding mistakes that might jeopardize their chances on appeal.  In the near future, I will talk about how to handle specific problem areas.  For now, follow this link, enjoy, and learn.



Frivolous use of appellate proceedings to avoid the inevitable



                The real estate market has produced many casualties.  Of course, when we were in the midst of the real estate bubble, we were all delighted to buy houses we couldn't afford and speculate on dreams of reselling at a huge profit.  I can remember when my agent took me to see my current home.  It hadn't even been listed and was being previewed by realtors.  "Let's see," I said, "I have Thursday available."  She responded, "I will be there in 45 minutes to pick you up."  Those were the days when buyers were making offers within a day of the house being on the market.  Any delay meant the house was gone.   But those days are gone and we are now suffering with houses that are upside down and we cannot even give them away.

                In Brown v. Wells Fargo Bank (2012) 204 Cal.App.4th 1353, the appellant and plaintiff was in default on her $480,000 mortgage.  Wells Fargo instituted foreclosure proceedings and the appellant filed a lawsuit, including requesting a preliminary injunction, to prevent the sale.  She then appealed from the court's order dissolving a preliminary injunction and allowing the sale to go forward.  Why, you might ask?  Well, it seems she failed to deposit $1,700 a month into a trust account in lieu of a bond as ordered by the court.  No, she had not made a single payment.  And she filed her notice of appeal two days before the property was scheduled to be sold.

                Appellant argued the order dissolving the injunction was invalid because it was issued "ex parte."   After calendar notice of oral argument was sent to appellant's attorney, he asked that the appeal be dismissed.  In her opening brief, appellant ignored the fact the trial court agreed to set the matter for hearing.  She made no showing the trial court abused its discretion nor did she show any miscarriage of judgment.

                The court noted, "The appellate courts take a dim view of a frivolous appeal.  Here, with the misguided help of counsel, the trustee's sale was delayed for over two years.  Use of the appellate process solely for delay is an abuse of the appellate process."  (Id. at pp. 1356-1357.)  It further held the appellant had not presented any viable issue on appeal and the appeal was frivolous as a matter of law.  It concluded, "'[R[espondent is not the only person aggrieved by this frivolous appeal.  Those litigants who have nonfrivolous appeals are waiting in line while we process the instant appeal.'"  (Id. at p. 1357.)

                The appellant was fortunate in that respondent did not ask for monetary sanctions and the court did not issue an order to show cause re sanctions payable to the court.  It did, however, deny appellant's request to dismiss the appeal, awarding respondent costs on appeal.  It also awarded attorney's fees if there was a provision for them in the note or deed of trust.  Finally, it ordered the clerk of the court to send a copy of the opinion to the State Bar for consideration of discipline.  Ouch!





I will miss you, Mr. Bradbury

I was very sad to hear about the recent death of Ray Bradbury.  He was such an amazing source of inspiration to writers everywhere.  I met Mr. Bradbury several times over the years, starting when I attended a writers' conference probably over 35 years ago.  Here is what I wrote after meeting him:


            "I once heard Ray Bradbury speak to a group of writers.  Fortunately, I was one of them.  His subjects were love and writing.  Actually, writing was only a symptom, a by-product, of love. 

            He spoke of passion.  Not in a dry, academic sense as a lecturer speaking to his students.  No, his body jumped with excitement and each sentence he spoke possessed the kernel of a great idea. 

            He told us that we don't create characters and write about their exploits.  Characters, he said, are born, sometimes without any help from the author.  For instance, he claimed Herman Melville didn't create Captain Ahab.  On the contrary, Captain Ahab appeared before Melville and told him about his life's story.  It must be written, Captain Ahab had demanded, with as much force as he had pursued his great white whale.  And it was done! 

            I was stunned.  How often had I thought up the skeleton of a character, pondering on what qualities to give him or her?  Should my character be selfish or kind?  Silly or intellectual?  Like a God, I created them, and many times they existed as the reflection of my image.

            But how many characters, alive with their own personalities, had I ignored because I wanted to be the creator?  I wanted to mold my clay figures, shaping them to my delight.  I had refused to accept their pleas to tell their story.  I then realized how many stories I had not written because I had insisted on being the storyteller.

            Writing was important to me.  I knew that if I too could feel this passion, this desire to see the possibilities in life, like the colors of a rainbow, I would have a story to tell.  But I was not alone.  Ray Bradbury had managed to touch all of us and we were captured in his spell. 

            He also talked about dinosaurs.  He told us a story about one night when he and his wife were walking on the shore near the Long Beach pier.  He gazed at the long deceased carnival rides and exclaimed, "Why, what is that dead dinosaur doing on the beach?"  He said the dinosaur had heard a foghorn, and believing it to be another dinosaur in a world where dinosaurs had disappeared, the dinosaur swam toward the shore, hoping to find a mate.  When this magnificent animal discovered his error, he died of a lonely and broken heart. 

            I was amazed that anyone could see a dinosaur in an old wooden amusement park.  What a passionate man he must be to create such a story!  Now there, I thought to myself, was a man I could love." 


I will miss you, Mr. Bradbury!


Federal Judge Protects First and Fifth Amendments


If you have any interest in the First Amendment, you will be pleased with this new ruling by a federal judge.  If you have any interest in receiving truthful news reports, you will also be glad.  And if you are a reporter, you will be overjoyed!   Judge Katherine Forrest of the Southern District of New York ruled that the indefinite detention provision of the National Defense Authorization Act may violate the First and Fifth Amendments of U.S. Citizens and granted a preliminary injunction barring enforcement of this provision.   These Amendments protect the rights of free speech and due process. 

Now you may wonder why you should care at all because most of you are not terrorists.  But this law would allow the government to indefinitely detain anyone it considers a terrorism suspect anywhere in the world without charge or trial.  One important thing to understand is the scope of this law that it would cover activities that the government considers substantially support terrorists or associated forces.   Such a law may include those who knowingly or unknowingly have a connection to terrorist suspects.  That just may include reporters who are interviewing such people. When you think of the right of this government to pluck out a person anywhere in the world and hold that person indefinitely without charges being brought against him or her and without trial, you may question what happen to our rights as U.S. citizens. 

Interestingly enough, Judge Forrest was appointed by President Obama, a former constitutional law professor, who signed the bill.  She found the law to be overbroad and potentially embrace speech.  In fact, the judge asked the government attorneys five times to acknowledge that journalists would not fall under the scope of the law or that their First Amendment rights would not be impacted.  They couldn't answer the question.  It should be noted that there is no express exemption for journalists. 

I remember when many years ago I started writing letters on behalf of Amnesty International.  One of the biggest sources of oppression by foreign governments was the detention of an individual without charge or trial.  My letters would plead for human rights and point to our legal system, which requires charges being brought against a person and a speedy trial.  Is this a thing of the past? 

This challenge was brought by journalists, scholars and political activists, including journalist Chris Hedges and Noam Chomsky.  It was opposed by a great number of individuals and groups.  They argue that it will have a chilling effect on journalists and may impact other activities, such as giving money for fundraising or participating in an Occupy Movement.  Many of us didn't even know about the scope of this law.  We have to pay attention as our civil liberties are being chiseled away.  I am glad that these plaintiffs took notice and acted.  Now we have to take notice and voice our support.

The government asked Judge Forrest to reconsider her ruling and are considering an appeal.