Are attorneys demonstrative evidence?

No, I haven't abandoned my blog. Even though my practice is almost exclusively devoted to appeals, I have one case, a medical malpractice action, that I have nursed along for years. I managed to salvage it on appeal after the original attorney failed to properly oppose the defendants' motion for summary judgment. I also agreed to assist in preparing the case for trial. Well, it has been a tough road and I have learned even more about the odd coupling of trial and appellate attorneys. It has literally consumed all of my days and nights. Fortunately, we were able to settle the matter last Friday and I can once again hope for better days. And lower blood pressure!

I also spent an incredible weekend in Rancho Mirage attending a workshop put on by two actors, Katherine James and Alan Blumenfeld, owners of Act of Communication and a trial consultant, Elizabeth Foley of Zagnoli McEvoy Foley. Part of my mission was to "cover" the workshop for my magazine, Plaintiff. Of course, I always learn from the subjects I cover. It is a real shame to me that attorneys aren't taught about the fine art of communication in law school. How many cases will you brief by the end of law school but you still aren't taught what to do with your hands during opening statement? Or the effective use of space in the courtroom?

I watched attorneys present an opening statement. They spent the next day working on skills for effective communication. On the last day, the attorneys gave a new version of their opening statement. A little bit of tweaking here and there can make a huge difference. We also had panels of mock jurors and I can report to you that the single most common complaint was that the jurors had an expectation of emotion or passion that was not met by the attorney. Do they want a "show"? Not necessarily. They just want to know that you believe in your case and you are not simply reciting facts.

Well, I suppose if I give you my report here, you will have no need to read my longer version. I hope to give you more tips and observations. Don't think I won't incorporate it into my appellate arguments, although I have a few more rules to abide by: not wandering away from the podium and trying to sound a little more intellectual while not losing my passion. Fine lines for all us. Not enough juice and the jury doesn't buy your client's story. Too much, and you might turn them off. For that reason, I really do think mock juries and focus groups serve an important function. But the real lesson is that the attorney - facial expressions, body movements, and voice - is a tool, just as much as any other type of demonstrative evidence, in achieving success in the courtroom.

Obstacles faced on appeal: judgments are presumed correct.

While this sounds like one of those basic principles that we learn in law school, such as the liberal construction of a complaint challenged by demurrer, this principle represents an obstacle to an appeal.

Think about it – judgments are presumed correct. Sounds simple, but what is means is that whenever a justice picks up your brief and starts to read it, that is his or her mindset. They have been instructed to preserve the judgment, if possible. It works something like a presumption of guilt except that the appellant is wrong and the court below is right.

Of course, it makes good sense because if judgments were not governed by this presumption or possibly presumed incorrect, then everyone would be running to the courthouse to challenge an adverse result. The courts are burdened enough as it is – remember those 75-85% of the cases where the court actually decided the judgment was in fact correct.

This principle is aptly expressed in Denham v. Superior Court (1970) 2 Cal.3d 557:

“[I]t is settled that: ‘A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’”

(Id. at p. 564.) What this means, as explained in State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610, “‘The burden of affirmatively demonstrating error is on the appellant. This is a general principle of appellate practice as well as an ingredient of the constitutional doctrine of reversible error.’”

As such, any ambiguities in the record favor the judgment. For instance, if there is an evidentiary conflict in an appeal based on the lack of substantial evidence, it will be resolved in favor of the respondent. Thus, “[t]he burden of demonstrating error rests on the appellant.” (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.)


Handling Objections in Motions for Summary Judgment

For attorneys who have heard me talk about motions for summary judgment, my number one tip is to get a ruling on your objections! In the midst of argument, attorneys often forget to ask the court for rulings. Sometimes, even when they do, the court may ignore them. Getting a ruling helps to protect the record on appeal.

Here's a secret: appellate attorneys love appeals from summary judgments! There are several reasons for this:

  • Usually the record is not that large and the issues are limited.

  • There is a better chance for reversal because the courts will carefully scrutinize the termination of a case that deprives a party of a trial on the merits.

  • You don't have to worry about a jury making a factual determination or the trial court exercising its discretion.

  • The standard of review for summary judgments is an independent review, meaning the Court of Appeal will review the record as if the trial court never existed.

Well, except for those pesky objections. If you fail to get a ruling, you may have waived the objection. Oops, there goes a point on appeal! That means the evidence is considered admitted for purposes of appeal. (Alexander v. Codemasters Group Limited (2002) 104 Cal.App.4th 129, 151.)

Sometimes you have to plead and beg to get rulings. We attorneys can get quite creative that way, even to the point of submitting a written notice of ruling on objections with blanks so the judge can check "overruled" or "sustained." Don't rely on the court's statement that it will only consider admissible evidence because it is viewed as an implied overruling of any objection not specifically sustained. (Id. at 151.) And if your begging gets you nowhere, you still have created a record showing that your attempts were futile. (Parkview Villas Ass'n v. State Farm Fire and Cas. Co. (2006) 133 Cal.App.4th 1197, 1217.)

In Calderon v. Glick (2005) 131 Cal.App.4th 224, the court held that when a party fails to obtain rulings on objections to evidence in a motion for summary judgment, the objections are waived and not preserved for appeal. (Id. at p. 234.) That holding seemed to reflect the traditional treatment of the failure to obtain rulings on objections.

Then along came Reid v. Google, Inc. (2007) 66 Cal.Rptr.3d 744, which concluded that C.C.P. sec. 473c(c) does not require express rulings. Nor does the statute provide that if you fail to obtain express rulings, you forfeit your objections on appeal. The court held that if there is no express ruling, then its failure to rule "effects an implied overruling of all objections, which are therefore preserved for appeal." (Id. at p. 1357.)

Possibly in an attempt to clarify the issue, the California Supreme Court granted review on January 30, 2008 and Reid v. Google, Inc. can no longer be cited as authority. Until the issue is finally resolved, I will continue to press attorneys to get express rulings on objections. If you have a lot of objections - not boilerplate ones - try to press for rulings on your most important objections or come up with a creative scorecard that makes it easy for the trial court to make its rulings.

Should a trial attorney attend an appellate seminar?

A fellow appellate blogger, Ray Ward, just wrote to tell me that I was featured as Inter Alia's "blawg of the day" at I noted I was listed as having 37 years of experience, which would mean I was giving legal advice at the age of 14! I can remember when I was sworn in at 24 and desperately hoped for a gray hair or two so that I might appear older to my clients. Now I am desperately trying to hide those gray hairs.

He also asked me to say a word or two about an upcoming two-day appellate seminar to be held in Orlando, Florida on February 28-29. In fact, his web site has a listing of the programs to be offered. You can check it out at I attended a program in San Francisco. Very informative and I met a lot of great people. If you can, I encourage you to go.

Remember when I described the differences between appellate and trial lawyers? Well, here's a point in case. I read the list of programs and got truly excited. Consider "Judicial Use of Legal Reasoning - Theory Versus Practice" or "How to Bring a Cold Paper Record to Life." So, if those subjects don't get your blood pumping, then you will know immediately why we are different creatures.

One was so intriguing that I had to read it.  Check out "Painting with Print" by Ruth Anne Robbins at   Now, I know that a lot of attorneys don't give a hoot about the physical appearance of their briefs but I happen to think this is a very important topic. I have always said that a brief should not only sound persuasive but it should look inviting. To me that means lots of white space and paragraphs, which I find very calming. Important information is contained in bite-sized paragraphs.

Then there are briefs that almost challenge the reader to find a place to break in. Ever see a paragraph that fills out the page from margin to margin and consists of a single paragraph? The page is announcing, "Just find a way to break in here.  I dare you!" Usually at that point I opt for some coffee and return to reading when I have more energy.

Ms. Robbins discusses legal documents in general. For instance, she notes that italics and underlining slow reading speed, while many readers prefer boldface for emphasis. And stop SCREAMING with CAPITALS! Of course, we could spend hours on whether to serif or not to serif but I think we are all agreed that no one (including those Wordperfect fans) should be using Courier. Fascinating to me and important because no judge will ever tell you that your choice of fonts made his or her eyes too tired to continue reading!

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.