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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





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, 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.    


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. 



       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! 


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.






There are no meritorious grounds for an appeal.



2. Let’s say the plaintiff has obtained a judgment against the defendant. The defendant may be unhappy with the verdict, but there are no real judicial errors to challenge or prejudice to the defendant. The jury just didn’t buy the defendant’s version of events. The defendant may want to appeal just to gain some leverage in future negotiations or to delay payment.

Two problems: ethically I can’t file appeal on that basis. Nor can I file an appeal for the plaintiff simply to give him or her leverage to settle a case. The second problem is that pursuing an appeal for the wrong reasons – harassment, improper delay, bad faith, etc. – can open the door to sanctions against both the lawyer and the appellant.

Appellants and their attorneys may be subject to sanctions for pursuing an appeal that is “frivolous” or “taken solely for delay.”  (C.C.P. § 907; C.R.C. rule 8.276(a)(1).) While a client may be sanctioned for pursuing an appeal to harass the other party or delay the effect of the judgment, the attorney faces an additional ground: that the appeal has no merit, meaning any reasonable attorney would agree the appeal is totally and completely without merit. (Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) I am not interested in risking my license to file an improper appeal. In addition, my retainer agreement provides that I can withdraw if I discover the appeal has no merit or it is being pursued for an improper purpose.

3. The trial court indicates the appellant lacks credibility.

If the lower court’s order or statement of decision indicates the appellant lacks credibility, I am always reluctant to pursue appeals when the trial court has made it clear the appellant is not to be believed. While it is true the court of appeal does not engage in credibility determination, to me it is a bad sign. If the appellate court is waffling on an issue, I believe it will come down in favor of the party who has more credibility or even sympathy. It is rare that I have won an appeal when the appellant has been branded a liar.

4. The client doesn’t have enough money to pay for an appeal.

Most appellate attorneys are not big risk-takers and will want to get paid up front for handling an appeal. The conventional wisdom is to ask for a retainer large enough to cover the hours required to get the appeal on the road and file the opening brief. If the client fails to pay any more money, at least the attorney has been paid up to this step and may seek to withdraw before the closing brief is due or oral argument is scheduled.

Some appellate attorneys will take cases on a contingency basis.  If I am considering a contingency fee basis, I would prefer to represent the respondent. The odds are in favor of affirming the judgment, so there is a good chance of winning and getting paid. Of course, the contingency fee is usually at least three times greater than that of payment up front, to compensate the attorney for the risk and deferred payment, so the appeal becomes more expensive to pursue. If you are representing the appellant, the odds are against reversal, so you’d better believe in your client’s chances on appeal.  

Some clients are better equipped financially to handle an appeal.  If your client is saving cash for a child’s education or is already living on the edge, then maybe they can put that money to a better use. I don’t want clients to bankrupt themselves or borrow money trying to pay for an appeal.

Sometimes the cost of obtaining the reporter’s transcript is enough to end an appeal. When clients are on the fence about an appeal and money is limited, I ask them to get estimates from the court reporter to help with the financial decision.

More to come ..