An Appeal to Reason

By the time I get involved in a case, the client has been through at least one, if not more, attorneys. Not only do I learn about the case, but I also hear about the relationship between the client and his or her attorney. Sometimes I feel like a janitor coming in after a big party and I have the task of cleaning up after the festivities are over. Or perhaps not quite over.

It wasn’t too long ago that plaintiff’s attorneys were concerned about their negative image with the public. The public perception of trial lawyers is generally not positive. Most of the people I talk to are angry and have lost confidence in their attorneys. It would be easy to say that they are just sore losers but I am not so convinced.

If trial lawyers are interested in improving the image of their profession, they can start with the simple things. Such as returning a phone call. That is the number one complaint that I hear. Average joes simply cannot reach their lawyers. It doesn’t matter that they leave voice mail messages, fax notes, or send emails. Their lawyers are too busy.

The second major complaint is that their lawyers just don’t care. That indifference can be demonstrated by a lack of preparation or by ignoring the client’s efforts to provide information or evidence. Clients understand they are engaging in a business transaction but they just don’t want to feel like a product.

Our image with the public could improve a couple of notches just by doing a few simple things. Return the phone call within 24-48 hours. If you can’t, have your staff do it. When you talk to your client, show some concern. You might learn a few facts about the client and his or her family. Just because we are in business doesn’t mean we shouldn’t show a little compassion. Listen to what your client has to say. Sometimes their explanation will fill in the blanks or shed light on areas that cause us concern. After all, they lived the case.

Presenting a sufficient record that demonstrates error overcomes the presumption that the judgment is correct. As noted in Steuri v. Junkin (1938) 27 Cal.App.2d 758, 760, if the record is silent, the presumption of correctness will control, but where the record demonstrates what the trial court did and error below, the presumption is overcome. “When the record clearly demonstrates what the trial court did, we will not presume it did something different.” (Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1384.)

So, how can an attorney fail to create a meaningful record? You might have a sidebar discussion, which may include a ruling, or an in-chambers conference, that is not reported. You might withdraw certain jury instructions and fail to make those withdrawn instructions part of the record. You might give the court reporter a break and waive reporting certain aspects of the trial, such as voir dire or closing arguments.

Failing to present a meaningful record may be more of a matter of choice. A “meaningful” record does not mean including only the items that favor your position. For instance, if you are appealing from the granting of a summary judgment, denial or granting of a post-trial motion, or an anti-SLAPP motion, you should designate all documents that were considered at the hearing. That shows you are fair and credible, and you believe your position is strong enough that you don’t need to hide documents and you will win on the merits.

That doesn’t mean intentionally omitting the opposing attorney’s filings. While this omission could be cured by a counter-designation or a later motion to augment, it does not reflect an objective presentation of the facts and could harm your credibility. In the worst case scenario, the reviewing court may conclude that it does not have an adequate record to make a determination that an error has occurred.

If the appellants fails to present a meaningful record, that puts the respondent in a quandary. Should he or she do nothing and let the reviewing court conclude the record is insufficient? Or should the respondent’s attorney provide the missing parts of the record, especially if the omitted portions will support respondent’s position? That, of course, will depend on the facts of the case.

The “record” consists of the Clerk’s Transcript or an appendix prepared by one or more of the parties of documents filed with the lower court, the Reporter’s Transcript of the oral proceedings, and the exhibits.

If you are the appellant, you have the burden of showing error on an adequate record. (Iliff v. Dustrud (2003) 107 Cal.App.4th 1201, 1209.) That means two things:

• You must have created a record that shows the error, and
  
• You must produce enough of the record for the reviewing court to show that the error occurred.

“‘A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.’” (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.)

In Denham v. Superior Court (1970) 2 Cal.3d 557, the court stated:

“‘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.)

Failing to create a meaningful record can occur in many ways. In my next post, I will provide a few examples and note some pitfalls in selecting the record.

Despite my best intentions, I haven’t been able to blog for a few weeks. Not only was I trying to keep up with my work but I suffered an awful attack of bronchitis that left me with a few bruised ribs from coughing. I just didn’t have any wisdom to share!

I am almost fully recovered and my powers of observation are sharpening. Just the other day, I attended an oral argument. One justice asked a question and the attorney quickly launched into what he wanted to say. Perhaps he intended to answer the question at some point, but the justice was noticeably irritated when a direct answer was not the first response out of the attorney’s mouth. A few minutes passed and another justice reminded the attorney that he still hadn’t answered the question. The second justice encouraged him to answer the question. Realizing the importance of this omission, the attorney then said, “Can you repeat your question?”

There is a simple point to all of this: make answering a justice’s question your first priority. When we approach oral argument, we all try to plan our presentations. Sometimes we get so wedded to the presentation, we don’t want anyone to stop the flow of words. Keep in mind that your presentation consists of information that you want to give.

Asking a question is a direct path to getting information that the justices want to hear. After all, they have briefed the case and may have some idea of how they feel it should be resolved. A question might be an attempt to fill in a missing piece to the puzzle.

Ignoring a question signals that the justice’s question is less important than your magnificent speech. Would you ignore a doctor who asked for more information about your symptoms or the waitress who only wanted to clarify if your steak was to be delivered to the table rare and well done? Think of yourself as part of a problem-solving team.

To make it easier: you might try to practice your oral argument in segments. Mix it up and argue out of order. Write a few questions on slips of paper and respond randomly. More importantly, recognize that answering a question is a great opportunity to deliver the information that might make the difference in how the case is decided.

In Adaimy v. Ruhl (February 28, 2008, B193745) ___ Cal.App.4th ___, 2008 WL 518224, a case recently decided by Division One of the Second Appellate District, the Court of Appeal dismissed Mr. Adaimy’s appeal as untimely. What happened? Adaimy filed a notice of intent to move for new trial after receiving notice of entry of judgment. The new trial motion was heard on August 3, 2006 and on August 7th, the court entered its order denying the motion. On that same day, the clerk mailed notice of entry of the order.

Under California Rules of Court, Rule 8.108(a), if a party serves and files a valid notice of intention to move for new trial and the motion is denied, the time to appeal is extended until the earliest of 30 days after the superior court clerk mails or a party serves an order denying the motion or notice of entry of that order. If neither the clerk or a party serves notice, the appealing party would have 180 days after entry of judgment to file the notice. According to the facts of this case, the time for filing the notice of appeal commenced to run on August 7, 2006. The court concluded that Adaimy’s notice of appeal was due on September 6, 2006 but he did not file it until the following day on September 7, 2006.

In a last ditch effort to save his appeal, Adaimy argued that the lower court did not properly serve notice of entry of judgment or the order denying new trial, thus giving him 180 days to file his appeal. His argument was based on the fact that on May 17, 2006, he filed an association of counsel, adding a new firm, and he requested all documents be served on all counsel. The clerk only served the original attorney.

The crucial issue was whether the clerk was required to serve both law firms. The court of appeal found that service on only one was sufficient and that one attorney received actual notice of the entry of the judgment and subsequent order.

The result may seem unnecessarily harsh. After all, Adaimy was only one day late. But the filing of the notice of appeal is jurisdictional and an absolute prerequisite to the appellate court’s power to consider the appeal. (Van Beurden Ins. Services, Inc. v. Customized Worldwide Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56.) A party in a civil case cannot seek an extension from the court or stipulate with the opposing party. And there is no relief under Code Civ. Proc. section 473(b). (Maynard v. Brandon (2005) 36 Cal.4th 364, 372-373.)

There are a few lessons to be learned here:

• If you have associated into a case, do not assume that the other attorney will take care of matters or that you both have the same documents.
• Maintain communications with your co-counsel about strategy, job tasks, and calendaring dates.
• Do not wait to file the notice of appeal until the last day. Your calculations might be off or something can always happen on the way to the courthouse to prevent a timely filing.

Even though Adaimy argued service was defective, it seems that at least one of his attorneys had actual notice and probably thought he or she was filing the notice of appeal on the very last day. Being just one day too late resulted in the loss of Adaimy’s appeal (and a possible malpractice action against the attorneys).

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.

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.)

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.

A fellow appellate blogger, Ray Ward, just wrote to tell me that I was featured as Inter Alia’s “blawg of the day” at http://www.inter-alia.net/comments.php?id=4127_0_1_0_C. 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 http://raymondpward.typepad.com/newlegalwriter/2007/12/a-terrific-semi.html. 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 http://works.bepress.com/ruth_anne_robbins/2/.   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!