Contact
  • 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

Donna@DonnaBader.com

 

 

 

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Monday
Jan072013

Be careful when you cut-and-paste from Lexis or Westlaw into your briefs

Happy New Year! 

 I hate starting out 2013 by bitching but I think this might be a valuable tip for attorneys.  I have observed the tendency to cheat a bit and lift entire sections from published opinions on Lexis or Westlaw.  Just the other day, I was reading a brief and I was impressed with the quality of the writing.  I have to admit I was a little surprised because the attorney's past work product didn't reflect such brilliance.  The paragraphs seemed to be original with no quotation marks to show the start/finish of a quote.  And then I saw it!  The proprietary markings of Lexis, including  underlining, asterisks, hyperlinking, and pagination from the various source materials.  The attorney had actually plagiarized entire sections from an opinion!  Let's say you are not lifting material but merely quoting it.  You still need to remember to take out the characters and formatting  inserted by Lexis or Westlaw, so that your "quote" is really how the language appears in case law.  Just because a case cite or language is underlined on your monitor does not mean that it is underlined in the case itself.  If you add emphasis to the quotation, be sure to note that as "emphasis added."  If the original writer has emphasized a word or phrase, be sure to note that as well as "emphasis in original."  Being sloppy can cost you, especially in credibility. 

Wednesday
Dec262012

Maximizing your chances of success before the Court of Appeal

 Effective preparation for oral argument

Last month I was contacted by an attorney who was preparing to appear before the Court of Appeal for oral argument.  The attorney, who shall remain nameless, has tried many cases but hadn't appear before the appellate court in over eight years.  He asked me to help him prepare.  Here's a short summary of what we did:  (1)  He sent me all of the briefs, which I reviewed, not as an advocate but as a justice, (2) I came up with a memo of "homework assignments," designed to give him insight into the Court of Appeal, his opponent, and the trial judge, and (3) I prepared a list of questions that I would ask if I were hearing the case.  We spent about an hour discussing the case.  Had we had more time, I would have asked those questions and given him an opportunity to practice his answers.  I was also able to share my thoughts on the strengths and weaknesses of both positions.  The attorney felt better prepared for oral argument and felt the investment was well worth it.  I would recommend working with an appellate attorney before you go up on appeal, especially when dealing with post-trial motions, demurrers, and motions for summary judgment.  In this case, while the justices may change their minds only 5% of the time during oral argument, you never know if your case will be in that 5%!

Tuesday
Dec112012

Have a Happy Holiday season! 

Well, the Holidays are upon us, and while others may complain about the typical Holiday lull, I find I am busier than ever.  In the past, mid-November through December was a slow period.  No one wanted to work and attorneys were busy attending Holiday parties.  But not this year.  I still have deadlines to attend to.  It is very difficult to ask for extensions of time from the courts because I am off somewhere having fun.  The nice part about being an appellate attorney is that I can work when I want, whether it is in the early morning or late at night.  And no dressing up for research and writing! 

 

I had thought about reporting on the Supreme Court's grant of review of the Proposition 8 case, but it seems that everyone else has already reported on it.  No breaking news on that front.  I have to admit I find it difficult to accept the fact that at this stage of human development, we are still dealing with same-sex marriage and legislation designed to control women's bodies.  It is especially disheartening to think that California's Proposition 8 will be reviewed by the Supreme Court when other states are allowing same sex marriages.  How far we have NOT come!  And when I think of how often the U.S. Supreme Court is split 5-4, and more often in favor of conservative politics and big business, I am reluctant to allow optimism to enter into any part of my thinking.

 

Finally, I have to apologize because I have neglected this blog for a while.  Too much work, but I hope to change that for next year.  Yes, next year.  I will put this task on my list of New Year's resolutions and promise to be better (and more regular) in 2013.  Until then, forgive my lack of attention and . . .

 

                                Have a Happy Holiday season! 

Wednesday
Oct242012

A smorgasbord of tips from my new book, An Appeal to Reason.

      Early this October, I was invited to speak at the 2012 Belli Seminar organized by the Santa Clara Trial Lawyers Association.  What an event!  I was flattered to share the stage with some top-notch trial lawyers, including John Burris, Rick Simons, Alejandro Blanco, Jeff Mitchell, Niall McCarthy, and Lawrance Bohm.   These attorneys gave us an inside look at their trial strategy.  My goal for that event was to give the audience some solid tips on how to work with an appellate attorney to protect the record in the event of an appeal.  I picked ten tips from my book, An Appeal to Reason:  204 Strategic Tools to Help You Win Your Appeal at Trial.  Don't worry, I have plenty left!  Just to give you a taste of my "tools" for winning appeals, I want to share a few moments from that event.  Enjoy!

 

Monday
Oct222012

Sharing appellate tips and knowledge

 

 A few weeks ago, I drove up to San Jose and spoke before about 90 attorneys attending the 2012 Belli Seminar, which was presented by the Santa Clara County Trial Lawyers Association.  I selected about 10 tips from my book and gave a short presentation to these attorneys on what they must do at the trial level to protect my appeals.  I was very flattered to be asked to speak along with a panel of some great trial lawyers, such as John Burris, Rick Simons, Lawrance Bohn, and Alejandro Blanco, among others.  Yes, I know it's a long drive from Laguna Beach, but I thought it was well worth it.

 One thing that struck me was how these trial attorneys focus on a theme in a case.  One attorney said that every case he tries is really about corporate greed.  Another said that he focuses on what happened to the plaintiffs, while another focused on making the jury feel that if it didn't stop the defendant, such misconduct could happen to them or others they might love.  Within those general themes, one could easily discover more specific themes.

Appeal are not much different.  We also have themes, but we also have grounds for appeal that we want to present to the trial court.  How does one find a theme in a case?  Well, what resonates about the case with you?  It might be a sense of unfairness, intolerance, or bureaucratic nightmares that deprive people of justice.   One question to ask might be why can't the plaintiff find justice?  An interesting way to develop a theme is to tell the story of your client's case to laypeople, not attorneys, and listen to their reactions.  What strikes them the most about the case?  What outrage do they experience and on what points?  My feeling is that justices might react the same way.  

Call me an optimist, but I believe that most judges want to do the right thing and want to be just.  We just have to present our appeals in such a way that there is only one way to do it.

 

 

 

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