• 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





Is legal blogging over?

In a recent post on Legal Blog Watch, blogger Elefant asks about "The Demise of the Legal Blogsophere."  She refers to another blogger, Mike Cernovich, who believes the blogosphere is overrun by "shallow marketing and exclusive cliques."  While I am always on the lookout for a great appeal, you won't find any "shallow" marketing here; my marketing plan is much more elaborate.

These bloggers have noticed changes in blogging over the years.  I agree.  Several years ago I attended a State Bar Convention and one of the speakers asked how many people had blogs or even searched blogs.  Only a few people out of hundreds raised their hands.  I was not one of them.

I think lawyers generally are behind the times when it comes to marketing, but one thing we seem to instinctively understand, and that's competition.  If one attorney comes up with an inventive marketing plan, then we are all for it.  We don't like being left out.

I started my blog for primarily two reasons:  (1) as an appellate attorney I had observed trial attorneys making the same mistakes over and over again, and those mistakes jeopardized the clients' chances on appeal, and (2) I was (and am) working on a book that tries to summarize my advice to trial lawyers.   I tried to balance my blog entries between giving solid advice and writing about the lighter side of appellate cases.  When I finish my book, perhaps I will just write about humor and the law.

I have been blogging for a short period of time but I have noticed that the field is becoming inundated with experts and expert wannabees.  Frankly, I can't read every blog, no matter how much I want to.  I like to see the sun outside.   There are blogs that are simply marketing tools and I shy away from those.  On the other hand, I am not one to read about an attorney's most recent ski trip or daughter's birthday party.  Sorry but that's just me.

As much as I try to stay on top of new ideas, including social networks, my profiles remain unfinished (at least I started) and I have yet to follow anyone on Twitter.  I am not particularly excited about the posts I read on Facebook and other networks.  Perhaps I am following the wrong people.

In any case, I am going to keep blogging away, at least until I finish my book.  If I seem like I am living in a shell, you may be right.  Occasionally, however, I do find some blogs very interesting - I am rather fond of Legal Blog Watch - and have to admit that the Internet is an amazing tool.

Standard of Review: Abuse of Discretion

In an appeal based on abuse of discretion, the appellate court examines the trial court’s discretionary rulings “and asks whether it exceeds the bounds of reason or is arbitrary, whimsical or capricious. . . This standard involves abundant deference to the trial court’s rulings.”  (People v. Jackson (2005) 128 Cal.App.4th 1009, 1018.) 

If you believe the trial court is acting beyond the bounds of reason or is arbitrary, whimsical or capricious, you must try to get that language on the record.  Sometimes trial courts are forthcoming about their reasons for ruling in a certain way, other times they prefer to keep it a mystery. 

     An appellant challenging a discretionary ruling on this ground will have the best chance of success if he or she can demonstrate that the trial court failed to adhere to legal criteria, the ruling is a clear case of abuse, and a miscarriage of justice.  If you are hoping to find that the trial court acted “beyond the bounds of reason,” think again.  While you may not like the court’s ruling, finding a judge who is irrational and acts beyond reason is not that common, although such a judge can be found in Hollywood movies. 


Standards of Review: Question of fact or law?

The application of law to undisputed facts is subject to the appellate court’s de novo review.  For instance, if the parties stipulate to facts, which then become undisputed, the correct application of law to those facts is subject to independent review.  As a result, questions of fact can be transformed into questions of law when the facts are uncontroverted and only one deduction or deduction can reasonably be drawn from those facts.  (Fagerquist v. Western Sun Aviation, Inc. (1987) 191 Cal. App.3d 709, 719.)  In Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, the court explained the difference:

“Questions of fact concern the establishment of historical or physical facts; their resolution is reviewed under the substantial-evidence test. Questions of law relate to the selection of a rule; their resolution is reviewed independently. Mixed questions of law and fact concern the application of the rule to the facts and the consequent determination whether the rule is satisfied. If the pertinent inquiry requires application of experience with human affairs, the question is predominantly factual and its determination is reviewed under the substantial-evidence test. If, by contrast, the inquiry requires a critical consideration, in a factual context, of legal principles and their underlying values, the question is predominantly legal and its determination is reviewed independently.”

(Id. at p. 888.)

       Seems simple enough, huh?  You might think so but attorneys squabble quite bit over this distinction.   They even argue over whether certain facts are undisputed and to what extent.  Oh, if I had a nickel for every time an opposing attorney insisted the facts were “undisputed,” I might be rich (except for the 40% loss in value of my invested nickels due to the current economy).




So, what are the standards of review?  

1.  Independent (or “de novo”) review:  This ground is raised when the issue is one of law and does not depend on disputed facts.  As a result, the appellate court examines the question de novo without giving any deference to the trial court.  “That is not to say the appellate court disregards the trial court’s rationale for its decision.  It often is most helpful and illustrates the important role trial courts play in shaping the law.  We are not averse to using all the help we can get.”  (People v. Jackson (2005) 128 Cal.App.4th 1009, 1018.)  The usefulness of the trial court’s reasoning may be that it acts as a checklist for the reviewing court. 

    Appeals based on this standard usually have a better chance for success because the reviewing court does not filter its decision by considering the reasoning of the trial court.  (That isn’t to say the court has no interest in why and how the trial court reached its decision, but it simply isn’t bound by what the trial court decided.)

    The appellate court may believe it is in the same, if not better, position to determine questions of law.  After all, the appellate court has the benefit of a collective intellect and more resources for conducting lengthy and exhaustive legal research.  Because questions of law are not dependent on evidence or a witness’s demeanor, there is no need to defer to trial court’s rulings.  Moreover, the appellate courts are concerned with maintaining a uniformity of decision and providing guidance to other litigants in other cases, which is usually not a concern shared by the trial court.   Independent review can be applied in dealing with constitutional issues, interpretation of statutes, regulations, and the Rules of Court, and issues regarding legislative validity.  The court of appeal will also independently interpret written instruments, except if the parties present conflicting evidence at trial

Why is the standard of review so important?

Some courts have characterized the standard of review as the “threshold issue” in every appeal.  In Clothesrigger, Inc. v. GTE Corp. (1987) 191 Cal.App.3d 605, the court stated, “As in every appellate matter, the threshold issue here is the proper standard of review.  The hierarchical process and respective roles of the trial and appellate courts involve more than ceremony.  Generally appropriate appellate deference to the trial court will be accomplished by affirming a correct trial court order even though the trial court may have given the wrong reason for its actions.”  (Id. at p. 607.)

Other courts have characterized the standard of review as “‘the degree of deference given by the reviewing court to the actions or decisions under review.’” (San Francisco Fire Fighters Local 798 v. City and County of San Francisco (2006) 38 Cal.4th 653, 667.)

The standard of review provides the focus of a brief.  While the appropriate standard of review may also be an issue in the case, recognition of the standard should guide the attorney in focusing his or her statement of facts and argument with the goal of satisfying the applicable standard.