The fight against Proposition 8 continues!

Originally published June 14th, 2011 , 1:09 pm

I just received word that U.S. District Court Judge James Ware denied a motion to vacate by the Yes on [Proposition] 8 folks, attacking U.S. District Judge Vaughn Walker’s failure to recuse himself from hearing the Proposition 8 case because he is gay and in a long-term relationship with another man.

This motion represented a wholesale attack on the judiciary because in essence it was argued that a judge could not put aside his or her personal feelings or situation to apply and follow the law.  Commentators have noted that a ruling finding Judge Walker incapable of deciding the case because of his sexual orientation would have far-reaching effects on other cases.  But before we go there, let’s consider this:  would a judge who was heterosexual and married also have a bias because he or she might be in favor of marriage between heterosexual partners?  Would a Christian judge also have a bias that would preclude hearing the case?  And what about a judge who never married?  The list could go on.

The truth is that we have biases or, shall I say, preferences.  It just seems to go along with human nature.  When a case is assigned, most attorneys research a judge to determine whether those “preferences” will have an impact on deciding cases.  Some judges are known for having a bias against women, plaintiff’s attorneys, high profile cases, etc.  I have known a few judges who were biased against young attorneys or attorneys who didn’t pay the judge the proper respect.  From time to time, those biases might surface in communications or rulings, but for the most part, the judge was still bound to follow the law.  And if he or she didn’t, then an appeal would almost certainly follow.  Sometimes those biases rise to a level that attorneys will attempt to disqualify a judge from hearing a case.

But it seemed in this situation the moving party was looking at sexual orientation as the basis of overturning Judge Walker’s decision.  To have granted this motion would have opened the door and encouraged others to search through a judge’s personal life, without any indication of prejudicial misconduct, to find some “proof” of bias.  I am happy to report that Judge Ware did not buy it.

In re Marriage of Greenberg: Another frivolous appeal

If there is anything that gives an appellate lawyer pleasure, it is to have a published case, especially when the lawyer is on the winning side.  Publication means the lawyer's name will go down in the history books, and if the decision helps shape the law, the lawyer can be proud of being a part of that decision.  Even if the lawyer is not on the winning side, publication means he or she participated in a case that involved important issues.  Sometimes the courts of appeal will publish opinions that may be critical of the lawyers, clients, or even the trial judge, and they may use a published opinion to "educate" other lawyers.  In re Marriage of Greenberg (2011) 194 Cal.App.4th 1095 is just one of those decisions. In In re Marriage of Greenberg, Justice Yegan of the Second Appellate District, Division Six started off his opinion with the following paragraph:

"Abraham Lincoln once said, 'He who represents himself has a fool for a client.'  Here, the client is an attorney who represented himself in the trial court.  He now represents himself on appeal.  He is unschoooled on the basics of appellate law, suggesting that Lincoln's observation applies on appeal.  We understand that emotions run high in family law litigation and this may cloud the judgment of a party.  But this does not excuse the filing of a 'creative' (i.e. misleading or incomplete or inaccurate) income and expense declaration; or perjury, as referenced by the trial court; or the filing of a frivolous appeal."

(Id. at p. 1097.)  Now, if you are Mr. Greenberg, you are probably squirming in your chair, knowing that the rest of the opinion is not going to provide the type of notoriety that appellate attorneys enjoy.  The appeal is from an order awarding $2,800 fees and sanctions to the wife.  Of course, most parties are not going to appeal such an order, because the appeal would cost more than the sanction order.  So, if an appeal is filed, then I would assume the client is driven by emotion.  But if you are an attorney, you can file an appeal free of attorney's fees, except if you get dinged once again with more sanctions. Here, the wife did not ask for sanctions - Mr. Greenberg lucked out! - but the court found the appeal was frivolous and referred to the State Bar for investigation.  (Bus. & Prof. Code, sec. 6086.7.) The appellate court in Greenberg found that the order was supported by substantial evidence and "easily" within the trial court's discretion.  (Id. at p. 1097.) The court continued, "The appeal flies in the face of what we described as an adverse factual finding.  This adverse factual finding creates an impossible platform upon which to predicate legal error.  Where, as here, an appeal is premised upon facts expressly not credited by the trial court, i.e. an adverse factual finding, the appeal is frivolous and sanctions may be imposed."   (Ibid.)  Finally, the court responded to Greenberg's argument that the trial court ignored the evidence supporting his position.   Justice Yegan wrote, "Not so.   The trial court sits as trier of fact and it is called upon to determine that a witness is to be believed or not believed.  This is the nature of fact finding."  (Id. at p. 1099.)    (I tell my clients that the court of appeal will not step into the role of trier of fact and make credibility determinations.)  The court continued:

"We also warned the bar that sanctions could be ordered for appeals based upon a theory asking to substitute our judgment for that of the trier of fact.  As we said then and we repeat now, 'no one seems to listen.' . . . We are ever hopeful that appellate lawyers are listening."

(Ibid., citing In re Marriage of Martin (1991) 229 Cal.App.3d 1196, 1200.)

Well, I am listening and passing these words on to my readers.

A few odds and ends.

May 29th, 2011 , 12:28 pm

A few people have asked about when my new book, An Appeal to Reason: 204 Strategic Tools to Help You Win Your Appeal at Trial, is coming out.  Well, after much blood, sweat, and tears, the book is now being sent off to the printer and with much luck (and maybe a few prayers), it will be ready at the beginning of July.  At least you will have a book to take to the beach or on vacation.  (Okay, so I am joking, I think.)

I just read a new case from the 4/3 entitled Moody v. Starr Surgical Co., 2011 Cal.App. LEXIS 623, in which the trial court made a ruling at a sidebar conference about not going into a specific area of questioning.  When the attorney did so, he was sanctioned in the sum of $1,500 pursuant to Code of Civil Procedure section 177.5.

In the opinion, the reviewing court noted that the trial was a week beyond its estimated length when the problem arose and there were “frequent sidebar conferences.  After several weeks of trial, the court stopped placing the sidebar conferences on the court reporter’s record, and counsel was told if someone wanted something on the record, they could do so ‘on their own time’ when the jury was gone.  While the original order was not recorded by the court reporter, the record on appeal is sufficient for review.”  (Opn., pg. 6.)

Whenever you engage in a sidebar conference, especially where there is a ruling from the trial court, it is best to put it on the record.  As an alternative, you may want to summarize and confirm what was said at a later time.  Here, it seems that when the court inquired about the attorney’s disobedience, enough was said at that time to fill in the omission of not having the original ruling on record.   In addition, the court was not denying the right to have the gist of the conferences reported; it was being sensitive to the mood of the jury.  It wouldn’t be a bad idea for the attorneys also to be sensitive to the jury’s “restlessness.”

A few lessons from a family law appellate case

May 17th, 2011 , 10:49 am

Family law is truly a battleground.  The emotions are running high and all of the problems in a relationship are often played out in the legal arena.  And if kids are involved, it can be a very sad situation, and sometimes, a real tragedy.  In a recent case, In re Marriage of Davenport, 2011 Cal.App. LEXIS 534,  Jill was represented by an experienced attorney and then her case was given to a “young and experienced” attorney for handling.  The case eventually produced a 35-page register of actions and 19 volumes of court files.  Jill filed a motion under Family Code section 271, seeking $600,861 in attorney fees and $332,933 in costs from Ken, which was followed by his motion for fees and costs.

In support of her motion for fees, Jill included a 52-page declaration from her young attorney, who stated he met with his client over 100 times while handling the case.  The declaration included 1,250 pages of exhibits.  The hearing on these motions occurred over a five-day period and the trial judge issued a 31-page decision, denying Jill’s motion and awarding Ken $100,000 in sanctions and $304,387 in attorney’s fees.  Jill appealed.

As one of her challenges on appeal, Jill argued there was no substantial evidence to show any sanctionable conduct by her attorney.  However, Jill’s factual argument set forth the evidence favorable to her and ignored the lower court’s lengthy statement of decision.  The appellate court refused to condone Jill’s conduct, finding she had violated California Rules of Court, rule 8.204(a)(2)(C), which requires “a summary of the significant facts . . .”   The court also indicated Jill’s brief ignored the principle that all evidence would be viewed most favorably to Ken, both because he was the prevailing party and the trial judge also issued a statement of decision, wherein conflicts in the evidence or reasonable inferences are drawn in favor of the trial court’s decision.

In her briefs, Jill tried to reargue her position below, based on the facts she liked.  The court concluded, “In sum, Jill’s brief manifests a treatment of the record that disregards the most fundamental rules of appellate review . . . As Justice Mosk well put it, such ‘factual presentation is but an attempt to argue on appeal those factual issues decided adversely to it at the trial level, contrary to established precepts of appellate review.  As such, it is doomed to fail.’” (Citing from Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 398-399.) (Citations omitted.)

The court found abundant evidence of the “mistreatment” of opposing counsel by Jill’s attorney.  Some of it was in correspondence between the attorneys and was viewed as contrary to the goal in family law to reduce acrimony and adversarial approaches.  Perhaps the attorney was not thinking that his correspondence would now be preserved in the law books forever.  Very short-signed and embarrassing.  Jill explained that the tone of her young attorney was “the expressions (sometimes intemperate) of a young lawyer frustrated that Ken was systematically obstructing the search for the truth   . . .”   The court in Davenport reminded counsel and us of the California Attorney Guidelines of Civility and Professionalism, and concluded:

“We close this discussion with a reminder to counsel — all counsel, regardless of practice, regardless of age — that zealous advocacy does not equate with ‘attack dog’ or ’scorched earth’; nor does it mean lack of civility . . . Zeal and vigor  in the representation of clients are commendable.  So are civility, courtesy, and cooperation.  They are not mutually exclusive.”

(Citations omitted.)

Appellate attorney kicks the V.A.’s butt in 9th Circuit Court of Appeals

May 11th, 2011 , 4:05 pm

Today I picked up the L.A. Times and read the following headline, “Judges slam VA’s mental health care.”  Underneath that headline was the following, “Court orders overhaul of handling of PTSD, other ailments, citing a rate of 18 suicides a day for  returning vets.”  That was enough to pull me in.  The article reported that the 9th Circuit Court of Appeals ruled in a case against the Department of Veterans Affairs, finding the V.A. failed to care for those suffering from post-traumatic stress disorder.  In fact, their treatment delays were so “egregious” that they violated the veterans’ constitutional rights “and contribute[d] to the despair behind many of the 6,500 suicides among veterans each year.”  The reporter did the math and noted that amounted to an average of 18 vets per day.  Wow!  That’s an astounding number.  Seeing that number brings home the reality of war.

The 9th Circuit took nearly two years to issue a decision, in part because the court was attempting to push the parties to resolve the dispute through mediation.  No deal.  The decision was not unanimous; however, with Judge Kozinski dissenting.  He opined that even though the V.A.’s behavior might “shock and outrage” the court, it could not step in to tell the V.A. what to do.  That didn’t stop Judge Stephen Reinhardt, who wrote the opinion, nor did it stop Sr. Judge Procter Hug Jr. from stepping in to join in that opinion.  Judge Reinhardt wrote:

There comes a time when the political branches have so completely and chronically failed to respect the People’s constitutional rights that the courts must be willing to enforce them.  We have reached that unfortunate point with respect to veterans who are suffering from the hidden, or not hidden, wounds of war.”

The case was filed by Veterans for Common Sense and Veterans United for Truth.  The lower court denied the groups’ claims on procedural grounds after a seven-day trial in 2008.  It concluded that it lacked the authority to tell the V.A. what to do.  The groups were represented by Gordon Erspamer, a San Francisco attorney who represented them pro bono.  Now some law firms allow associates or partners to work on pro bono cases, but you still have to have a lot of respect for someone who is willing to take on the government.  The V.A., through the Justice Department, had no comment and said it would be reviewing the ruling.

The reporter, Carol J. Williams, included the following statistics:  25 million vets in the U.S., including 1.6 million who served in Iraq and Afghanistan over the last ten years.  A Rand Institute study in 2008 reported that approximately 300,000 vets currently suffer from PTSD and major depression.  And why not?  Risking their lives on a daily basis?  Extended stays?  Seeing death and destruction everywhere?  Fear that has little chance to subside?

But rather than taking care of these vets within 30 days of requesting help, the V.A. ignored their applications for months and even years, or worse yet, denied them.  Tens of thousands were simply placed on a waiting list due to chronic shortages.  The ruling also referred to a 2007 report by the Office of the Inspector General that noted there were no suicide prevention officers at the V.A.’s 800-community-based outpatient clients, which is where most of the vets would receive their medical care.

It seems so odd to me that we have spent days celebrating the skills of our Navy Seals, who were successful in killing Osama bin Laden.  But our returning vets are heroes too.  They are the unsung heroes that faced death on a daily basis.  They certainly deserve better.  And it makes me proud that Mr. Erspamer persisted in his efforts to give them some assistance and to provide some light to the rest of us.  This is just shameful and the V.A. should have more than “no comment.”  These are the cases that renew my admiration of trial lawyers and the appellate lawyers who continue their fight!