My baby has arrived! An Appeal to Reason is finally here!

After what seems like months, if not years, my book has finally arrived.  It looks beautiful.  Although I have never delivered a child, I am sure this is the next best thing.  Oh yeah, no late nights, no lack of sleep, and no crying (except for me).  Maybe it is the BEST thing.

This book is all me, with some help from various people, but from the beginning concept to the end product, this book has been a vision of mine for years.  (Okay, so every nonfiction author dreams of writing a novel, but that may be the next item on my agenda.)  The primary reason I wrote the darned thing was to help trial lawyers avoid mistakes at the superior court level that will hurt their chances on appeal.  For over 30 years, I have seen the same type of mistakes over and over again.  I have talked about them, lectured on them, written about them, but now, I have collected most of my wisdom - yes, even I have secrets - so that trial lawyers will benefit.

Someone recently asked me, "Let me get this straight, you are writing a book with advice, that if followed, will essentially put you out of work?"  Well, I didn't think of that way, and prefer not to, but I guess there is something to be said about that line of thinking.  No, I don't think that the appellate courts will close their doors if everyone follows my advice.  There still will be work for appellate attorneys.  But truthfully, if I am going to handle an appeal, I would want to be in the best position to win.  So, that is my hope for you trial attorneys after you have read the book. 

Appeals are about real people

Going through recent appellate decisions is something that I do on a daily basis.  Sometimes I am looking to see if a decision might have some application to an issue I am working on.  Other times I am looking for tips and warnings that I can pass on to others so they might avoid pitfalls in pursuing an appeal.  Once in a while I might stumble on a case that is interesting for other reasons. 

When I first started reading Kincaid v. Kincaid, 2011 Cal.App. LEXIS 800, I have to admit I was stunned.  The facts were enough to sadden me.  The appellant is the mother of a young woman, Shannon, who committed suicide by jumping off the roof of her mother's apartment complex.  Shannon was 11 years old when the appellant married Jeffrey Kincaid.  The appellant alleged that shortly after their marriage, respondent began torturing, molesting and raping the young girl.  The opinion described some of these acts, and noted that respondent threatened Shannon if she told anyone about his actions.  As a result, Shannon developed severe emotional problems and became dependent on alcohol and drugs.  After she received psychiatric help, a report was made to law enforcement.  Ultimately, the prosecution did not go forward with a criminal case due to insufficient evidence.  Several years later, Shannon committed suicide.

Mrs. Kincaid filed a wrongful death action, alleging that respondent's behavior was a substantial factor in causing her daughter's suicide.   The trial court granted respondent's motion for summary judgment, but the appellate court reversed the judgment, finding the trial court erred in refusing to admit a transcript of a recorded telephone conversation between the parties in which appellant confronted respondent.  This conversation, had it been admitted, would have created a triable issue as to whether the acts occurred.

This case stayed with me well after I finished reading the opinion.  I am not reporting on the law of the case.  The point that I wanted to make is that while appeals may deal with "judicial error" at the lower court level, the cases are still about people.  Yes, we can make them about the law, but we are missing an important ingredient if we overlook the story behind the appeal.  When dealing with clients, an attorney must be mindful of the story, because the appellant's motivation in pursuing a wrongful death action for the loss of her daughter may mean more to her than just obtaining an award of damages.  And respondent's fight to avoid a finding of liability may also mean more to him than just paying damages.  Motivation is also an important consideration.  But when you are presenting a client's story to the appellate court, remember that you are dealing with real people and try to write your briefs in a way that brings that story alive.  No matter how painful that might be.

Appealing from a summary judgment

Sometimes you just have to pursue a petition for writ of mandate to get a judge to do his or her job.  InDavis v. Superior Court (2011) 196 Cal.App.4th 669, the plaintiff filed a petition for a writ of mandate directing the trial court to enter its final judgment so that the petitioner could appeal.  The petitioner had filed an employment discrimination complaint against the City of Los Angeles, who then moved for summary judgment.  The trial court issued a minute order that tentatively granted the motion, and then set forth an order granting summary judgment, which was served on all parties and labeled as “Notice of Entry of Order.”  The Minute Order included a written ruling, entitled “Order Granting Summary Judgment,” which set forth the trial judge’s order and included a single, underlined sentence, “Judgment is therefore entered in favor of Defendant and against Plaintiff on all causes of action in the complaint.”  (Id. at p. 671.)

Three weeks later, the City filed and served a proposed judgment and a memorandum of costs.  The trial court did not act on the proposed judgment.  The docket showed entry of an order granting summary judgment, but no entry of judgment or notice of entry of judgment.

One year later, the petitioner moved for entry of judgment.  The trial court denied the motion, claiming its order entering summary judgment with the one-line reference to a judgment was sufficient.  The court even noted that in the future it might title the document differently, but it was not about to do so in this case.

The first point is one that is important to remember:  parties do not appeal from an order granting summary judgment.  (Saben, Earlix & Associates v. Fillet (2005) 143 Cal.App.4th 1024, 1030.)  They must appeal from a summary judgment after entry of judgment.  (Code Civ. Proc., sec. 437c(m)(1).)  Of course, this point was very important to the petitioner.  If no judgment had been properly entered, the time would not start for an appeal, but if the document was construed as a judgment, petitioner was out of time.  The trial court deemed its order as a judgment and would not enter a second judgment in the same case.  The City also argued that one should look at the effect of the written ruling, and not its form, pointing to the sentence that provided judgment had been entered.  (If the City wanted to take that position, then why did it file a proposed judgment?)

The appellate court concluded:  “Here, in contrast, construing the trial court’s language as its judgment when it was styled as an order extinguishes the right to appeal.  Consistent with the importance of the right to appeal, we conclude that denying [petitioner] his appellate rights requires more than an ‘order’ (the court’s own title for its ruling) dressed-up to masquerade as a ‘judgment.’”  (Id. at p. 674.)

When I am asking about filing a notice of appeal from the granting of a motion for summary judgment, I request copies of the notice of ruling, order, minute order, judgment, and notice of entry of judgment.  Sometimes the difference is not entirely clear, such as here where an order also appears to contain language that resembles a judgment.  I have seen situations where the order and judgment are combined and caution attorneys to carefully read these documents.  The petitioner in this case might have simply appealed from the order/judgment, and the document could be construed as a final judgment.  But instead, the petitioner waited a year, attacked the order, and now has gained the right to appeal.  That approach, while it worked in Davis, was much more costly and even chancy, but losing a good appeal because you are too late can be very costly as well.

Are you persuaded by your appellate briefs?

Originally published June 30th, 2011 , 6:14 pm

One of the dangers of being a writer is falling in love with your own words.  Attorneys who write their own briefs are no exception.  You have to be willing to sacrifice your “babies” for the sake of a polished product.  At times, I have finished a brief and felt so convinced of my position that I was surprised when the other side even bothered to file a response.  They should just give up and go away!  Or maybe send me a message that they just can’t top my brief.  Unfortunately, that never seems to happen, and when I receive my opponent’s brief, I often wonder how the hell I am going to respond to their brilliant arguments.  Fortunately for my clients, that feeling soon dissipates and I manage to find a way to counter their arguments.

There are also times that I finish a brief, believing it is the best it can be, and I have nothing more to add.  I am done.  That’s usually when I put the brief aside for a few days and send it off for others to read.  When I pick it up again, I feel fresh and often find ways of adding to what seemed finished only a few days earlier.

I cannot stress enough the importance of writing a great brief.   That starts with organizing and outlining, to structuring sentences, and then building them into strong paragraphs.  But a brief needs an infusion of humanity, because after all, we are dealing with human beings.  A brief must work on a number of levels, but essentially, it must persuade.  Or to put it on a more basic level, it must sell your position.

The idea that a brief would be the cornerstone of an appeal has not always been true.  Briefs were not required until 1884, which was 11 years after the birth of the typewriter.  Before then, oral argument took center stage and could often go on for days.  Of course, there was no television then and oral argument might have provided some entertainment value.  By 1849, the United States Supreme Court limited oral argument to two hours per side.   I can’t imagine having 30 minutes, let alone two hours, for oral argument.

The importance of writing is taking a new turn and fast becoming a lost art.  With the flood of information we receive from various sources, we don’t have the time to read, even for the pure pleasure of it.  For instance, it is not unusual for me to receive over 200 e-mails a day.  Some of them are junk mail, but many of them are trying to give me information that might be of interest to me.  Imagine if you went to your mailbox and found 200 letters per day filing up the box!  You would feel overwhelmed and try to find ways to streamline the task of reading this mountain of information.  That’s what I find myself doing.  I read a paragraph or two, and then often discard the e-mails.  This is true even if I find the information of value!  And we only have to look at our e-mails to learn that we are looking for short cuts to write, such as eliminating punctuation and coming up with quick ways of communicating.

If you find yourself having trouble on focusing and reading or writing in this manner, then you might wonder if the justices are doing the same thing.   Maybe they have better attention spans than I have.  What it means to me is that briefs must be concise and get to the point.  They must be interesting.  If you pick up your brief, and you don’t fall in love with the words and find them interesting, then it’s time to start rewriting.  And you must be willing to sacrifice some of those words so that your briefs are persuasive and to the point.

Pet owners have remedies if their beloved pets are hurt

Originally published June 19th, 2011 , 12:04 pm

We really love our pets!  Sometimes they are not even considered “pets,” but we may refer them to our children or babies.   Do you think cave people could have envisioned the evolution of the relationship between man and animal?   The First Appellate District, Division One, obviously took that factor into consideration when it decided Kimes v. Grosser, 2011 Cal.App. LEXIS 671.  In that case, the defendant “allegedly” shot plaintiff’s pet cat, Pumkin, causing the plaintiff to incur substantial bills.  The trial court dismissed the case, concluding the plaintiff was unable to prove the value of the cat exceeded the costs of “repair.”  The appellate court was asked to determine what the plaintiff could recover when a pet animal has little market value.  The court held the owner can recover reasonable and necessary costs of care of the animal that are attributable to the injury and punitive damages, if the injury is intentional.

The costs of treating and caring for Pumkin were not cheap.  Emergency surgery cost $6,000, but plaintiff incurred an additional $30,000 in caring for Pumkin, who became partially paralyzed due to the injury.  To add insult to injury, the defendant filed a motion in limine to exclude those expenses, describing beloved Pumkin as “an adopted stray of very low economic value.”  (Tell that to the cat’s owner.)  Defendant claimed plaintiff’s recovery was limited to the amount by which the injury reduced Pumkin’s fair market value.  The court granted the motion, but plaintiff refused to proceed, essentially conceding Pumkin had no market value that justified going to trial.  Plaintiff appealed from the judgment of dismissal after the court concluded he failed to prosecute the case, pursuant to Code of Civil Procedure section 583.410.

The court held that pets are considered property of their owners.  (Tell that to my dog, who views me as his personal property!)  According to CACI No. 3903J, an owner can recover the lessor of (1) the diminution of the property’s market value due to the injury, or (2) the reasonable cost of repairing the property.  If the property cannot be completely repaired, the damages are the difference between its value before the harm and its value after repairs have been made, plus the reasonable cost of making the repairs.  The total amount cannot exceed the property’s value before the harm occurred.

Comparing the situation to the loss of affection and society of a parent or child, the court ruled that loss of the pet’s companionship was not compensable.   Had it been permitted as an item of recoverable damages, the case’s value would go up astronomically, maybe even more so than the loss of consortium claims made by spouses that we so often see.  It did confirm that plaintiffs are entitled to present evidence of the cost of repairs, even in those cases where recovery is limited to the lost market value.  The court also concluded CACI No. 3903J apply to prevent proof of out-of-pocket expenses to save the life of a pet cat.

The court recognized the difficulty of measuring damages where the property has no real market value, but has value to the plaintiff.  It deemed that proof of costs incurred represented a rational way to determine damages.  It also cited Evidence Code section 823, which allows any method of valuation “that is just and equitable” in cases where “there is no relevant, comparable market.”  As such, plaintiff could present evidence of bills incurred to save Pumkin’s life and “is entitled to recover the reasonable and necessary costs caused by someone who wrongfully injured the cat.  Defendants are entitled to present evidence why the costs were unreasonable under the circumstances.” (Opn., pg. 12.)  In addition, plaintiff could recover punitive damages if it could be proven the shooting was willful, pursuant to Civil Code section 3340.

For another appellate point of view on this case, check out Gary Watt’s posting athttp://www.caappellatelaw.com/2011/06/articles/the-36k-pellet/index.html.

I am sure that Mr. Watt did not really mean to recommend that you kill an annoying cat rather than just wounding it.  After all, that reasoning could be equally applicable to human beings who are forced to go through tremendous pain and suffering as well as future medical expenses.  I prefer to think that he really means that one should make friends with these little critters.  After all, paying $36,000 for Pumkin offers a strong incentive to overlook, compromise, rationalize, or any other behavior that makes an animal’s presence tolerable to the non-owner.