Appellate victory results in a 2013 CLAY Award by California Lawyer.

They, whoever they are, say that when it rains, it pours.  Most of the time that means bad news comes in buckets, but occasionally, good news comes our way.  In this case, my way.  Not only did I have my first gallery opening for my photography last Saturday, but only one day earlier, California Lawyer put out a press release announcing that Mitch Jackson and I were CLAY (California Lawyer of the Year) Award winners for 2013.  California Lawyer named 60 attorneys for 27 accomplishments in 21 areas of legal practice.   Mitch and I won in the category of "litigation" for our "precedent-setting victory for pet owners when a court of appeal upheld a jury award to a married couple for emotional distress they were caused by the injury of their dog."  (Press Release)

Mitch Jackson was the trial attorney and I handled the appellate work, all the way up to a petition for review to the California Supreme Court, which was later denied.  The decision by the Court of Appeal, Fourth Appellate District, Division Three can be found at Plotnik v. Meihaus (2012)  208 Cal.App.4th 1590.  It was a gratifying win for both us in a case dealing with years of harassment by neighbors against our clients.   Our clients' dog Romeo suffered injuries, including a dislocated hip, when the neighbor hit the dog with a baseball bat.  Being an animal lover, this was one of the best wins of my life (although my dog doesn't seem too impressed)!

Creativity in appellate briefs

Judges will often encourage attorneys to be "brief" in preparing their briefs.  I like this story:  a lawyer who wanted to file an amicus brief, opposing the Justice Department's proposed antitrust settlement with three publishers of e-books, was given a five-page limit.  Most attorneys would be upset by this.  What can anyone say in five pages?  The attorney decided to file the brief as a cartoon or, as he called it, a "graphic novelette."  The attorney's daughter prepared the illustrations.  The brief had a table of authorities, and then the comic strip followed, with the first panel showing the judge ordering a five-page limit.  Sounds like a good way to distill arguments to their essence.   You can find more information about the brief and a PDF of the cartoon here: http://www.abajournal.com/news/article/faced_with_a_five-page_limit_lawyer_files_cartoon_amicus_brief_with_proper_/?utm_source=maestro&utm_medium=email&utm_campaign=weekly_email

Protect the Exhibits in the event of an Appeal.

 Okay, so you've won (or lost) at trial and it is over.  Now you can go on to the next case.  In a very short time, your memory of the trial will start to fade.  But then an appeal is filed and your appellate attorney (sometimes me) questions you about what happened below.  One of the first questions I might ask is who has the exhibits.  Were the exhibits released to the parties or did the court retain custody of them?   The court, having received complaints from the clerk that there is little room for storage, will encourage you to take the original exhibits.  You would be surprised how many attorneys can't remember what happened to the exhibits.  Now the appellate attorney, who has to transmit the exhibits to the court of appeal, must go searching for them.  My trial tip would be to insist that the trial court maintain custody of exhibits.  That reduces the chance of loss and preserves their integrity.  If the court is resistant to this suggestion, maybe you can compromise and agree to pick up the originals after the period of filing a notice of appeal has expired.

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. 

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%!