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! 

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!

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.

Have you Googled your clients lately?

The Internet is a great source for information.  As attorneys, we need to get our names out there so prospective clients can find us.  On the flip side, how often do you, as part of your intake, conduct searches on your clients? 

In Cajamarca v. Regal Entertainment Group, Case No. 11 Civ. 2780, District Judge Cogan of the United States District Court, Eastern District of New York awarded sanctions to defendants in the amount of $3,000, plus costs of $3,683.  Okay, it's not such a huge amount, but the Order makes for fun reading.  

Apparently, the District Judge previously granted defendants' motion for summary judgment in a sexual harassment case filed by Veronica Cajamarca, who alleged that she had been subjected to sexual harassment when a co-worker exposed himself and masturbated in front of her (the "break room incident").  The defendants then filed a motion for sanctions and attorney's fees seeking $552,627.50 in fees and costs of $113,177.36. 

It seems in opposing the summary judgment motion, plaintiff had been portrayed as "essentially an ingénue who was diagnosed by a psychiatrist as having post-traumatic stress disorder as a result of the incident perpetrated by her sexually abusive co-worker."  That sounds pretty serious, except for a few minordetails: 

• Plaintiff had prior convictions for prostitution, worked as a call girl, and "had a rather fulsome sexual history, including an interest in sado-masochism.
• During her deposition, and even when questioned by her own psychiatrist, she omitted her sexual history.  Rather than being "bedridden" and in a "vegetative state" as a result of the incident, her Facebook page describes "an extraordinarily active travel and social life," which included "engaging in sexual banter with friends."
• Plaintiff's testimony that the break room incident occurred after several months of socializing with the co-worker was false.  Documentary evidence showed that the break room incident happened first, and then plaintiff had an active relationship with the co-worker that included lending him money.  She was still friendly with him after the break room incident, but there was strong support for the co-worker's claim that Cajamarca turned on him "when he advised her that he was reconciling with his wife." 

How did Cajamarca respond to these claims?  Her counsel responded with procedural defenses, i.e., the motion was filed too late, the defendants improperly combined the two motions, and did not give adequate notice.  

The District Court concluded that "plaintiff's lawyer should be roundly embarrassed.  At the very least, he did an extraordinarily poor job of client intake in not learning highly material information about his client, . . . "  The Court sanctioned plaintiff's attorney, in part because he never advised his client to preserve data on her laptop's hard drive.  It found "Defendants were clearly prejudiced by the obstruction of discovery because if they had had the data when they took plaintiff's deposition, the tenuousness of her damages claim would likely have become even more apparent and might well have resulted in the withdrawal or nominal settlement of the claim." 

Tip for the Day:  Research potential clients by Google and Facebook.

The Court of Appeal recognizes the value of pets (and especially, dogs).

In one of my recently decided appeals, Plotnik v. Meihaus, the Plotniks sued their neighbors, the Meihauses, after suffering years of emotional distress.  They alleged tort claims as well as a breaches of a mutual restraining order that included an attorney's fees clause.  As noted by the appellate court, "[t]hings came to a head" when the Plotnik family dog, Romeo, a 12-15 lb., 12" miniature pinscher, inadvertently ran into the Meihaus's backyard.  Plotnik tried to retrieve his dog, but then heard backing and a squeal.  "He hurried home, arriving in time to see Romeo rolling down the slope through the open gate and hit a tree. "  (Opn., pg. 5.)  Plotnik then encountered Meihaus, who was holding a bat.  Romeo's surgery cost $2,600.  The case was tried before a jury, who returned a verdict of $154,100 against Meihaus, $12,000 against one Meihaus son and $9,500 against a second son, for a total of $175,600.  The jury also awarded Mrs. Plotnik the sum of $255,209.53.  The trial court reduced the judgment by $80,000 and then case proceeded to an appeal.

One of the major issues was whether the Plotniks could recover under their trespass to personal property cause of action for the "emotional distress they suffered resulting from Meihaus's injuring Romeo by striking him with a bat."  (Opn., pg. 15.)  The Court of Appeal concluded, "We hold California law allows a pet owner to recover for mental suffering caused by another's intentional act that injures or kills his or her animal."  (Opn., pg. 2.)   The court acknowledged that damages for trespass to personal property allows a plaintiff to recover actual damages.  It also noted that no case law prohibited the recovery of damages for emotional distress.  (Opn., pg. 16.)

Then, in a sentence that made my dog Casper swell with pride, the court acknowledged that there are "no other domestic animals to which the owner or his family can become more strongly attached, or the loss of which will be more keenly felt."  (Opn., pg. 17.)  The court also noted one can be liable for punitive damages for willfully or through gross negligence injuring an animal.  (Civ. Code sec. 3340.)  "Intentionally maiming, mutilating, torturing, or wounding an animal also constitutes a crime.  (Pen. Code, sec. 597, subd. (a).)"  (Ibid.)  Casper reminds me that although the Court of Appeal expresses its rule in general language, i.e., "pet owners" and "animals," it gave a special nod to dogs and ignored any mention of cats. 

The appellate court reduced the total damage award, affirming an award of $57,950 to David Plotnik, plus $1,000 each against each Meihaus son, and damages to Joyce Plotnik of $100,209.53.  It also affirmed the award of $93,780 in attorney fees.  You can find the opinion at: http://www.courts.ca.gov/opinions/documents/G045885.PDF.