Can trial attorneys be nice people? 

 I know you will read the title of this blog and a small smile will appear on your face. Maybe even a chuckle. Just the thought of trial attorneys as “nice people” might seem totally foreign to you. We teand to think of attorneys of human pit bulls. A female attorney and a friend of mine – yes, a trial attorney- has a business card that depicts her in a cartoon as “a pit bull in heels.” That’s a fine reputation for a trial attorney. 

I have often indicated that we appellate attorneys are a different breed. We don’t take risks in the same way that trial attorneys do – we like the security of payment up front. We tend to be less confrontational, but I won’t write that in permanent ink. We do know that our circle of appellateattorneys is a small one and we often come up against each other on a regular basis. We also realize that the justices who review our cases are not persuaded by unbridled passion as they attempt to determine if the lower court has committed a judicial error. 

Hardly the stuff of action-packed thrillers, although I find a good legal issue can be very exciting. It may change a few lives as well. Sometimes there are just no clear-cut answers and we have to reason our way through. That is where creativity can be important. 

I often advise clients not to pick an attorney based on his or her ability to be aggressive. A pit bull costs more money in the long run, much more than cooperation.  And I am not sure that “pit bulls” are more successful than nice people. But Hollywood seems to think otherwise. 

For me, I am stuck with my childhood training that requires me to be nice to people.  And why not? What do I have to lose? For those attorneys who are aggressive and threatening, they are one-noteattorneys. They can’t be nice after threatening people and it is hard to threaten while trying to collaborate. But I can always resort to being more aggressive if the niceness doesn’t work. Fortunately, I haven’t had to do that too often.



Sometimes There is No Justice

 As an appellate attorney, I handle appeals in the civil justice system. It could be two or more individuals suing each other, lawsuits by business entities, or individuals suing big companies and the government. Quite often, money is at stake.  Occasionally, it might be a right to do or not do something, sell or keep property, but most of the time, I am trying to help one party get money or avoid paying it. You may say that my area of law is not involved in life-or-death issues, although there might be a huge impact on the parties. Usually, no one dies.

Criminal appellate attorneys have a tougher battle. They are usually fighting for a person’s freedom. Criminal cases can have a profound effect on the defendants, but also on family members, as well as victims and their families.  Sometimes people die and justice has not been served.

I read the story of Kalief Browder today.  He was 16 years of age when he was detained on suspicion of stealing a backpack. When his family could not afford the bail, he languished in jail at Rikers Island. He spent almost 800 days in solitary confinement and was not charged with a crime. His case was dismissed. By then he had undergone years of beatings by guards and fellow inmates. Perhaps solitary confinement offered some measure of safety. But by the time he was released – no matter who many people supported him – he was broken. Last Saturday he committed suicide

Last Sunday John Oliver did a great piece on how many poor people, many charged with nonviolent charges, are stuck in jail – blanketed by a thin presumption of innocence – because they cannot afford to pay for bail.  There are a disproportionate number of African-Americans sitting in jail, waiting to be charged. Waiting for trial.  And they will often plead guilty because they would rather serve time and get out than pay for a bail and wait for trial. 

I am sure there are legal challenges that could have been used in Kalief Browder’s case. But writs don’t stop fellow inmates from assaulting you. Writs won’t protect you from beatings by your guards. At least the story made its way to Mayor de Blasio, who has done away with solitary confinement for 16- and 17-year olds.  For many years, I wrote letters on behalf of Amnesty International to foreign governments, protesting imprisonment without trial and pointing out our country’s emphasis on due process of law and the right to a speedy trial.  What happened to those rights for Mr. Browder?  Have we forgotten the roots of our government and our proclaimed belief in human rights?  This was a death that should never have happened


New Yorker Article by Jennifer Gonnerman:



John Oliver’s News Segment:


Winning is almost everything.

Last week I received word that I won one of my appeals. Funny that I use the word "won" as if the judgment was affirmed solely through my own efforts. To win, a lot of variables need to fall into place. For instance, the facts should be in your client's favor. That helps. And, oh yes, it helps if the law is in your favor. Should I forget the trial court? Sometimes, a lot of times in fact, the Court below does the right thing. So, when all of that is combined, I can claim a personal victory.  

Am I forgetting something? Oh, yes, the client. Right! Sometimes they do the right thing and that helps.
But I am not writing to talk about my win. I want to talk about how it feels to help someone. Many clients come to me after a loss below, and they feel an injustice has been committed. Or their voice has not been heard. It's very hard for them to have some sort of closure and get on with their lives when that happens. They simply want to be heard and then perhaps they can accept what fate has in store for them. At least I can give them a voice before the appellate court.

At times, my job is to preserve a win below, and justice has merely been postponed for a year or two. A reversal quite often means a retrial. For many clients, the first trial may have exhausted their finances and a second trial might be impossible, no matter how much the facts and the law favors them. If they are forced to go for a retrial but don't have the money, they will settle and justice will not be served. The expense of litigation often forces people to settle for far less than they deserve.  

In my recent appeal, we preserved our win and the client will not have to go through a retrial. No, I was not making her rich or putting money in her pocket. But I experienced real satisfaction knowing my client was saved additional expense and could get on with her life. That made it worthwhile for me. I hope I never lose that enthusiasm. Money isn't enough to do it, but helping others is.



Tentative Opinions in Appellate Cases  


I recently appeared for oral argument before District Two, Division 7. Apparently, it is the only division in District Two that distributes a tentative ruling just before the scheduled hearing. For example, if you have a 1:00 p.m. appearance, you will be handed a one-paragraph sheet with the tentative ruling. Only one copy is made, so you must read it quickly and then hand it over to your opponent.

As Justice Ramirez, Presiding Justice of the Fourth Appellate District, Division Two, once said, “The Court wants you to give your best argument. If you are nervous or uncomfortable, you might not be able to do that.” As I prepare for oral argument, I try to take steps to minimize my nervousness by intensive preparation and practice. Receiving a tentative opinion minutes before oral argument is hardly conducive to allowing an appellate attorney to do his or her best. Last minute tentative rulings leave us scrambling and may not allow for adequate research and preparation.

Early focus letters, such as those utilized in other Districts, allow the attorneys to concentrate and tailor their presentations to issues that are important to the Court. The attorneys still need to be fully prepared, but we could save our clients’ money in attorney fees if we can focus our arguments

Another aspect, although not quite as significant, is that in appearing for oral argument, we should believe we have some chance to win, although we all know the odds. To be given a sheet of paper minutes before that, advising us that we have lost, has an immediate impact on our confidence level. A focus letter in advance allows us to absorb the loss - if that's what it is - lick our wounds, and get ready to fight for our position.  




Appellants must provide a meaningful record or forfeit their claims

 An appellate attorney’s mantra to trial attorneys is to always protect the record.  Our job on appeal is to provide that record to the Court of Appeal.  If we don’t provide a record that shows the trial court committed prejudicial error, we may have forfeited our claims.

In an unpublished opinion in Bonito v. Huntington Condominium Association, #G049338, by the Fourth Appellate District, Division Three, a homeowners’ association appealed from a judgment entered against it for breach of fiduciary duty and negligence claims.  The basis for the claim was that the Association failed to remediate elevated groundwater levels despite obtaining funds in a construction defect lawsuit against the developer.

The appellate court found the Association forfeited all of its challenges except one because the appellant offered little more than bare assertions of trial court error, and failed to address the express basis given by the lower court in its statement of decision.

The Court of Appeal listed several appellate principles that bear repeating here:

  • The appellant’s opening brief must include a summary of the significant facts, not just those favorable to the appellant, and a relevant procedural history, citing California Rules of Court, rule 8.204(1)(2). (Opn., pg. 3.)

  • Although exhibits are “deemed” part of the record on appeal, they are not typically included in the clerk’s transcript nor are they transmitted unless (1) designated as part of the record, or (2) a party makes a timely request to transmit them pursuant to Rules of Court, rules 8.122(a)(3) and 8.224. (Opn., pg. 3, fn. 1.)

  • As a cardinal rule of appellate review, judgments are presumed correct, and therefore, the burden falls on the appellant to prejudicial error.

  • Unless the record shows otherwise, all presumptions favor the trial court and it is presumed matters that could have been presented actually were and the trial court followed the law. (Opn., pg. 7.)

  • The appellant has an affirmative duty to provide relevant portions of the record and, failure to do so, will result in a forfeiture of the point.  (Opn., pg. 7.)

  • Appellate briefs must provide argument and legal authority for each ground.  Failure to do so waives the point. “‘We are not bound to develop appellants’ argument for them . . . The absence of cogent legal argument or citation to authority allows this court to treat the contention as waived.’”  (Opn., pg. 7.)

  • Appellant’s must address the trial court’s express findings and controlling authority.  If not, the point will be deemed waived.  (Opn., pg. 9.)  “‘One cannot simply say the court erred, and leave it up to the appellate court to figure out why.’”  (Niko v. Foreman (2006) 144 Cal.App.4th 344, 368.)

Although the Association’s brief included a “Factual Background,” it was incomplete, forcing the Court of Appeal to rely on trial court’s statement of decision for a factual summary.  The appellant failed to even acknowledge the lower court issued a statement of decision and ignored that court’s findings.  The appellant prevailed on one issue – good news for the client – but the court’s decision was to simply remand it to the trial court to prepare a new statement of decision.  Not much of a victory.

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