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Monday
Jan142008

Can credibility be determined on appeal?


 


One of the biggest mistakes that trial attorneys make is viewing the appeal as a second bite of the apple. The appellate court is not the forum for retrying questions of fact or reweighing the evidence. (Uriarte v. United States Pipe & Foundry Co. (1996) 51 Cal.App.4th 780, 791.) For instance, if a client or the attorney insists, “the witness lied on the stand” or “we had better evidence than they did,” I know the client is seeking to retry the case, especially on questions of fact, and credibility is a major factor. But the court of appeal is not in the position to determine if someone is lying or telling the truth except, of course, if the lies are obvious from other evidence. (Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1531.)



Another frequent area of concern by parties is where the lower court has stated, usually in an order or statement of decision, that the party’s testimony lacks credibility. No one wants to have a public record made of a judicial officer’s conclusions about the veracity of a party. Unfortunately, that finding is reduced to a written communication to the court of appeal of the lower court’s impressions of the demeanor and truthfulness of a witness. It is a difficult label to overcome, especially when the court of appeal may never lay its collective eyes on the witness while the trial court was situated only a few feet away.



Once I questioned some justices about whether they look around the courtroom during oral argument to figure out who the parties. If the attorney sits next to the clients, the answer is obvious. Sometimes, clients sit in the back, leaving the attorney alone to prepare for oral argument. Surprisingly, the justices admitted they had a certain curiosity as to who the participants were. More than that, there was also a curiosity as to why clients failed to show up for oral argument when the court’s decision could have a huge impact on their lives.



Monday
Jan072008

As I was saying . . . avoid recycled briefs.


Happy New Year! It's hard to believe the Holidays are over and we have to get back to work. Back to my last subject, using recycled briefs.


Because courts of appeal are not bound by the decisions of other appellate courts, “appellate court precedent is open for reexamination and critical analysis. Along the same lines, appellate counsel must necessarily be more acutely aware of how a given case fits within the overall framework of a given area of law, so as to be able to anticipate whether any resulting opinion will be published, and what effect counsel’s position will have on the common law as it is continuously developed.” (In re Marriage of Shaban (2001) 88 Cal.App.4th 398, 409.)



The court in In re Marriage of Shaban, supra, concluded:



“The upshot of these considerations is that appellate practice entails rigorous original work in its own right. The appellate practitioner who takes trial level points and authorities and, without reconsideration or additional research, merely shovels them in to an appellate brief, is producing a substandard product. Rather than being a rehash of trial level points and authorities, the appellate brief offers counsel probably their best opportunity to craft work of original, professional, and, on occasion, literary value.”



(Id. at p. 410.)


Apparently, some attorneys do not even take that additional step of "shoveling." In Parker v. Wolters Kluwer United States, Inc. (2007) 149 Cal.App.4th 285, the appellant referred to documents he filed with the trial court below and incorporated them by reference into his appellate brief. Now that takes a lot of chutzpah to be so confident of your position that you don't even have to lay it out for the court. If the justices are interested, let them go find the documents in the record! Not only did the Court of Appeal find this to be a violation of California Rules of Court, rule 8.204(a)(1)(B), but it annoyed them enough to make a published comment and then reject his "incorporated" arguments. I'll bet his client was pleased with saving the printing expense as a result of the attorney's abbreviated arguments.

Friday
Dec282007

Even appellate attorneys need a break.

Since I started writing this blog, I have tried to offer trial attorneys suggestions on how they might protect their cases in the event of an appeal. Thinking and writing are really exhausting activities! Then the Holiday season started and I noticed that my enthusiasm dimmed as each new film was released for my consideration (as well as that of the Academy). Social events took priority and I thought it was more important that I remind my friends and family of how important they are to me. I also noticed that others were doing the same thing. Somehow work slipped to the back burner and no one seemed to be interested in lively exchanges about the trend in punitive damages or the latest legislation dealing with arbitrations and class actions.

After giving it considerable thought, it seemed to me that the most prudent thing to do was to stop thinking during this Holiday season and enjoy life. For those of you who have the opportunity, don't miss No Country for Old Men and Sweeney Todd (avert your eyes when Sweeney starts to shave his customers). Buy your loved ones plenty of presents but also remember to give generously of your time. Give a few bucks to your favorite charity and the homeless person on the corner. Stop thinking about the things you have to do at the office and immerse yourself in the Holiday season.

I haven't forgotten you. I just need a break to recharge my brain. HAPPY HOLIDAYS!
Friday
Dec212007

Don't recycle your post-trial motions into appellate briefs.


Because courts of appeal are not bound by the decisions of other appellate courts, “appellate court precedent is open for reexamination and critical analysis. Along the same lines, appellate counsel must necessarily be more acutely aware of how a given case fits within the overall framework of a given area of law, so as to be able to anticipate whether any resulting opinion will be published, and what effect counsel’s position will have on the common law as it is continuously developed.” (Id. at p. 409.)


The court in In re Marriage of Shaban (2001) 88 Cal.App.4th 398, concluded:




“The upshot of these considerations is that appellate practice entails rigorous original work in its own right. The appellate practitioner who takes trial level points and authorities and, without reconsideration or additional research, merely shovels them in to an appellate brief, is producing a substandard product. Rather than being a rehash of trial level points and authorities, the appellate brief offers counsel probably their best opportunity to craft work of original, professional, and, on occasion, literary value.”

(Id. at p. 410.)


If I am retained to represent an appellant, I am reluctant to use a work product that has failed to persuade at the trial level. Whatever the trial attorney did below was not successful, so why should I want to repeat those same mistakes or take the same approach?


If, on the other hand, I am called on to represent the respondent, I would much prefer to make a winning argument in a different manner rather than relying on paperwork that will be reviewed during the appellate process. Why not take two opportunities to persuade rather than recycling a single approach?


Saturday
Dec152007

The role of the appellate attorney is different from that of the trial attorney.


The appellate and trial attorneys have different jobs to do. The trial attorney must present the case to a trier of fact to determine questions of fact and must satisfy a legal burden of proof in their presentation of the evidence. The appellate attorney is looking for prejudicial error and also asks the appellate court to decide questions of law. Of course, both must be persuasive in their presentations.


One of the major criticisms I hear from appellate court justices is that trial attorneys who handle their own appeals merely recycle their trial briefs or motions presented below. To compound the problem, these same attorneys appear for oral argument and reargue the evidence as if they were addressing a jury. In re Marriage of Shaban (2001) 88 Cal.App.4th 398, the court illustrates this problem:



“Appellate work is most assuredly not the recycling of trial level points and authorities. Of course, the orientation of trial work and appellate work is obviously different . . . , but that is only the beginning of the differences that come immediately to mind.


For better or worse, appellate briefs receive greater judicial scrutiny than trial level points and authorities, because three judges (or maybe seven) will read them, not just one judge. The judges will also work under comparatively less time pressure, and will therefore be able to study the attorney’s ‘work product’ more closely. They will also have more staff (there are fewer research attorneys per judge at the trial level) to help them identify errors in counsel’s reasoning, misstatements of law and miscitations of authority, and to do original research to uncover ideas and authorities that counsel may have missed, or decided not to bring to the court’s attention.”


(Id. at pp. 408-409.)


I know that I am dealing with this type of approach when the trial attorney suggests that my job will be easy because I can just take his or her motion for new trial and insert it into an appellate brief. Failing to tailor the appellate brief to the correct audience – which will be apparent to the court of appeal – will not serve your client’s interests.