Does passion have any place in appellate law?

How about this for an enticing topic?  The topic first came to mind after reading my friend Mitch Jackson's recent article on "How Do You Keep the Passion and Fire in Your Belly?"  You can find the article and my comment at  http://newworldlawyer.com/whats-your-passion/.

Let's start with life in general and then work down to our careers.  Okay, this is my theory:  when civilization first began, we had to spend many hours fighting for survival, hunting or searching for food, and getting in enough sleep to do it all over again the next day.  Even so, early man still had some extra time to devote to painting caves, etc.   Through the centuries, we've eliminated or shortened the time we spent finding food and protection, and at the same time, our life spans have increased.  So, we have to do something to fill up this extra time.  Some people believe we are here for a purpose.  I don't, but I do think that people find a purpose in living and that purpose usually involves some passion.  My choice is to try to live every day with passion (some days more than others).

We have to do something to make money to live in comfort.   Some people believe our lives are spent in being consumers, so then we need money to live and consume.  That's where our jobs come in.  We might as well do something we enjoy.  Because passion has a lot going for it, I want to bring that passion to my work. But don't confuse passion solely with fiery or emotional speeches delivered to a jury.  I have talked with justices and most of them tell me that too much emotion or drama has no place in an appellate oral argument.  That doesn't mean oral argument has to be delivered in a monotone, stripped of any human emotion.

Appellate justices are human after all, and while they might not want you to argue to them as though you were in front of a jury, a monotone delivery may put them to sleep.  What they are interested in seeing is that you believe in your position.  Some justices may want to test your beliefs by asking questions.  That is where passion should come in.  For me, if I can't believe in my client's cause, then I don't want to take the case.  In fact, I think of how I will argue the appeal at our very first meeting.  If I can't picture myself fighting for their issue, then I usually turn down the case.  I want to believe I am filling up my time (that my ancestors gave up running away from predators) to fight for something that I care about.  And I think the justices want to decide cases that they feel are important.

If you think there is some validity to this concept, then you might also want to consider two resources.  One, Act of Communication, run by two of my favorite people, Katherine James and Alan Blumenfeld, has launched a new blog, www.LegalStage.com, which they describe as "Where the law and the arts meet - whether in the courtroom, the boardroom, on stage, on screen or in rehearsal."  Act of Communication is an established trial consulting firm of actors who help attorneys maximize their presentation skills, which includes skills to allow the passion to come through.  Also check out www.ActofCommunication.com for the main web site.

Also, check out my new book review on Trial in Action. Another book about connecting with your passion (and much more) to become more effective advocates in trial.  You can find it online at  http://www.plaintiffmagazine.com/Feb11/Bader_Trial-in-Action_The-Persuasive-Power-of-Psychodrama_Plaintiff-magazine.pdf.

And no, I don't get any commissions from these plugs.  I am just passing on some great information and resources!

Can a motion for new trial be granted after the statutory deadline has expired?

Congratulations to my friend Barry Wolf on his recent win - just today! -  in the Second Appellate District, Division Eight, in Green v. Laibco, LLC. Sounds like he did a great job, but I would expect that of him.  He's an excellent appellate attorney.

In Green, the plaintiff was fired after working more than 21 years for Laibco, which was doing business as Las Flores Convalescent Hospital.  She worked as the activities director and her discharge came after one of the residents had engaged in unsafe smoking and suffered injuries.  The plaintiff alleged she was terminated in violation of public policy, and retaliated against for making complaints about patient care and safety, refusing to give false information to the Department of Health Services, and complaining about the sexual harassment of one of her colleagues.  Judgment was entered after a jury trial and the plaintiff was awarded $1,237,086 in compensatory damages and an equal amount in punitive damages.  The defendant filed a motion for new trial, which was granted, and a motion for judgment notwithstanding the verdict as to the punitive damages.  The plaintiff appealed from the new trial order and the defendant cross-appealed.  The court affirmed the judgment.

The appellate court found that the defendant's new trial motion was denied by operation of law because the trial court failed to make a ruling within 60 days after the defendant filed the motion.   It held that the trial court lost jurisdiction to grant a new trial motion, and therefore, its order was void.  The appellate court relied on Code of Civil Procedure section 660, which provides that the trial court's power to rule on motions for new trial expires 60 days from and after the mailing of notice of entry of judgment by the clerk of the court or a party, "or if such notice has not theretofore been given, then 60 days after filing of the first notice of intention to move for a new trial."  If the motion is not determined within this 60-day period, it is effectively considered a denial.  These time limits are mandatory and jurisdictional, and an attempt by the trial court to rule after the 60-day period is in excess of the court's jurisdiction and void.  The trial court entered its order 61 days days after the defendant filed its notice of intention to move for a new trial.  Ouch!  One day!

The defendant also tried to challenge the judgment based on an insufficiency of evidence and the trial court's denial of its JNOV motion.  The court concluded that evidence of defendant's profit for a 12-month period and evidence of its positive net worth constituted meaningful evidence of the defendant's financial condition.  It further stated, "even if the record were 'completely devoid of any meaningful evidence' of defendant's financial condition -- which it is not - any deficiency may be laid at the door of the defendant, whose chief executive officer purported to be both ignorant of his company's financial condition and unable to read its financial statements."  (Opn., pgs. 13-14.)

The court also stated, "Second, we cannot leave this subject without comment on what may be described colloquially as defendant's chutzpah in insisting that plaintiff failed to meet her burden to prove defendant's financial condition  The notion that the jury did not have necessary information about defendant's net worth because plaintiff did not move defendant's financial statements into evidence -- statements which defendant's own CEO could not read -- is the height of absurdity.  The jury did not have information about defendant's net worth because defendant's CEO engaged in stonewalling, pure and simple, from beginning to end."  (Opn., pg. 14.)   In addition, the trial court ordered defendant to submit its financial statements on the day of trial, but it failed to do so.

Defendant's stonewalling was "obvious from a cold transcript, and it was no doubt obvious to the jury."  (Opn. pg. 15.)  What I find especially interesting here is that sometimes context cannot be determined from a trial transcript, and the readers do not know exactly how testimony was delivered.  That is one good reason that the court of appeal does not touch on credibility issues.  But here, the court is basically advising the defendant that its lack of credibility was apparent even from reading a "cold transcript."

The court also found there was substantial evidence to support plaintiff's wrongful termination claims, including evidence of defendant's retaliation against her after she complained of sexual harassment of another.

Way to go, Barry!

Another important appellate decision regarding the privacy of e-mails

In Holmes v. Petrovich Development Co., LLC (2011) 2011 Cal.App. Lexis 33, the plaintiff sued her employer for claims pertaining to her employment.  The defendant employer was successful on a motion for summary adjudication on claims relating to hostile work environment, sexual harassment, retaliation, and constructive discharge.  A jury then returned a verdict for the defendant on the remaining claims of violation of plaintiff's right to privacy and intentional infliction of emotional distress.

On appeal, the reviewing court held that summary adjudication was proper on the hostile work environment claim.  What I thought was particularly noteworthy about this case was the finding that the employee's e-mails to her lawyer were not protected by the attorney-client privilege set forth in Evidence Code section 954 because they were not confidential communications as defined in Evidence Code section 952.  In reaching its decision, the court relied on the fact that the employee used her employer's computer after being told that her e-mails were not private and were accessible by the employer.  The company's policy was that the computers were to be used for the employer's business and employees were prohibited from  sending or receiving of personal e-mails.  The employer warned that it would monitor its computers to confirm compliance with this policy, inspecting files and messages at any time, and that employees had no right of privacy with respect to the information or messages contained in those e-mails.

While the court explained that attorney-client communications do not lose their privileged character just because electronic means are used or because persons involved in the "delivery, facilitation, or storage of electronic communication" may have access to the communication.  (Opn., pg. 3.)  The court continued, "However, the e-mails sent via company computer under the circumstances of this case were akin to consulting her lawyer in her employer's conference room, in a loud voice, with the door open, so that any reasonable person would expect their discussion of her complaints about her employer would be overheard by him."  (Ibid.) By using the company's computer to send e-mails to her lawyer, knowing that such e-mails violated company policy and might be monitored by her employer, the plaintiff did not communicate in confidence or by means that would not disclose information to a third party.

The plaintiff argued that she believed her personal e-mails would be private because she used a private password to access the computer and she deleted the e-mails after they were sent.  The court found plaintiff's belief in the privacy of these e-mails was unreasonable because she had been warned of company policy and  she should have no expectation of privacy as to personal e-mails.  Indeed, the employer indicated it would be monitoring communications.  In addition, both the company's controller and IT person had administrative passwords that could access employees' private e-mails.  Thus, the plaintiff had no reasonable expectation of privacy in her e-mail communications sent from her employer's computer and the company computer was not a means by which plaintiff could communicate in confidence with her attorney.

There is probably little doubt that employees frequently use their employer's telephones and computers to conduct personal business.  Given the reality of our reliance on constant text messaging and e-mails - even to the point of rewiring out brains! - it is hard to imagine that most of us can wait until a coffee break or lunch period to handle personal matters.  But we should understand that using a company's computer and time, especially when specifically advised that such personal contacts are prohibited, poses risks.

For attorneys, we have to be especially careful.  Clients often communicate with us through e-mails, but how often do we inquire as to the privacy of such e-mails?  I believe it would be a good idea to learn about how the client is sending e-mails to you and if any third person has access to such communications.  You might also consider getting the client's consent in writing in your retainer agreement to send e-mails containing confidential communications and documents by electronic means.

Is the Supreme Court a "highly respected institution," as Justice Scalia insists?

Justice Scalia kicked over a hornet's nest during an interview he gave a few weeks ago when he said the 14th Amendment was never meant to apply to sex discrimination.  Those challenging his remarks pointed to the language of the 14th Amendment, which provides, in part:  "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."   His critics then challenged him to explain just what was meant by a "citizen" or a "person."

Before Justice Scalia spoke those words, he characterized the Supreme Court as a "highly respected institution."  He then  discussed Bush v. Gore (2000) 531 U.S. 1060; 121 S. Ct. 674; 148 L. Ed. 2d 575, saying,  "I was very, very proud of the way the Court's reputation survived that, even though there are a lot of people who are probably still mad about it."

I believe Bush v. Gore, supra, damaged the Court's reputation in this country and the world.  When clients come to see me, they may insist that they have the truth on their side, and if there is any true justice in the world, then the trial court, jury, or even the courts of appeal will see it.  If that were the case, they would have nothing to worry about.  Trial preparation would almost be unnecessary because the truth would always win out.  I remind them that there are more elements to winning than just having the truth on your side.  It could be a matter of how likeable the attorney or client is.  It could also be a matter of how unlikeable the other side is.  Presentation is extremely important. And we can't dismiss the importance of the trial judge and his or her impact on the trial.

When it comes to an appeal, those clients often feel that given the righteousness of their position, the appellate courts can only come to one conclusion.  That might make sense in theory but we can't overlook the role that personality, including political ideology, plays in how we view the world and the stories (or cases) brought to the court by human beings.  For if the courts were composed of fair-minded and intelligent jurists, then only one conclusion would be possible.  There would be no splits between divisions and no dissents.  We would all view the case in the same way.  But we don't and different decisions on similar facts occurs.

So when we look at the Supreme Court, we see that it is quite often split 5-4, with the same players almost always on the same side.  How is that possible?  One might say that those five jurists share a similar world view, while those dissenting four jurists share a different world view.  It is often said that Justice Kennedy is the swing vote and has the ultimate power of deciding cases, depending on which group he joins.  That hardly sounds like a recipe for justice.  Many people did not think about the divisions within the Court until Bush v. Gore, because at that moment in history, the United States Supreme Court would decide who would be the next president.  If we looked at the make-up of the justices who voted for Bush, rather than Gore, we see those political ideologies in action.

Of course, when we think about a justice waiting until a Democratic President takes office before announcing his or her retirement, then aren't we also announcing to the country that  that a Republican President will choose a different justice who will vote in a different way?  If political ideology wasn't a part of the decision-making process, then why does the party out of power always object to the President's choice for a new justice.

These facts alone are enough to convince many citizens that the Supreme Court is another political institution and subject to political ideology.  When one looks at the opinions of certain justices, then it is easy to conclude that personality is also a factor.  But should these factors enter into a Court's decision?  Too many times have I heard a client say, "No, I don't want to take my case to the U.S. Supreme Court given the present composition of the Court."  That alone suggests that our citizens do not view the Supreme Court as a "highly respected institution."

That opinion was crystallized in last year's decision in Citizens United v. Federal Election Commission (2010) 130 S. Ct. 876; 175 L. Ed. 2d 753 , which allows corporations to spend an unlimited amount of funds to support or attack political candidates.   This decision was seen as a great victory for corporations and big businesses.  As usual, the Court was split along party lines.   The effects of this decision are that outside groups are tossing money at political campaigns in higher numbers and corporate lobbyists have a greater influence over what happens in Congress.  Money is the name of the game.

I have also read that on the anniversary of this ruling, Common Cause and others have filed petitions with the U.S. Department of Justice, asking it to investigate whether Justices Scalia and Thomas should have recused themselves from hearing the case due to conflicts of interest.  Demonstrations and rallies attacking this decision on its anniversary date have been held to protest a decision that has allowed corporate spending to soar and to keep secret the sources of outside spending.  The decision has essentially pitted the average citizen against powerful corporate interests.  Given our present economy, and even under typical circumstances, the small contributions by individuals can never measure up to the big bucks of a corporation.  Coming at a time when citizens are increasingly skeptical of the U.S. Supreme Court, the decision only served to confirm that politics were front and center in the decision, thus tarnishing the Court's reputation, as Justice Scalia puts it, as a "highly respected institution."

Can the police search your cell phone after you are arrested?

In People v. Diaz (2011) #S166600, the California Supreme Court reversed the court of appeal's affirmance of the trial court's denial of a motion to suppress evidence of text messages on the defendant's cell phone.  The Court held that the officers' search of text messages taken from the defendant's cell phone within 90 minutes after a lawful arrest was incident to a lawful custodial arrest.  It held that the cell phone was "immediately associated with defendant's person's," and therefore, the warrantless search was valid.

The opinion was written by Justice Chin.  Justices Baxter, Corrigan, and George concurred in the opinion.  Justice Kennard wrote a concurring opinion, while Justice Werdegar, joined by Justice Moreno, dissented.  The majority relied on federal court decisions that held clothing and small containers could be searched without a warrant.

Justice Werdegar dissented, finding substantial differences between clothing and smart phones.  Electronic devices contain enormous amounts of personal and private information.  Once the device is taken into police custody, then the defendant cannot erase the information and a warrant could be obtained.  Justice Werdegar also distinguished a person's privacy rights in his or her person from a privacy interest in data stored on electronic devices.  She reasoned that a person does not lose all privacy rights after being taken into custody.  She also explained that some examination of the device may be reasonable, such as when an officer receives a call on the phone or there is a reason to fear imminent loss of evidence.

Justice Werdegar concluded, "The majority's holding, however, goes much further, apparently allowing police carte blanche, with no showing of exigency, to rummage at leisure through {Slip Opn. Page 13} the wealth of personal and business information that can be carried on a mobile phone or handheld computer merely because the device was taken from an arrestee's person. The majority thus sanctions a highly intrusive and unjustified type of search, one meeting neither the warrant requirement nor the reasonableness requirement of the Fourth Amendment to the United States Constitution. As a commentator has noted, '[i]f courts adopted this rule, it would subject anyone who is the subject of a custodial arrest, even for a traffic violation, to a preapproved foray into a virtual warehouse of their most intimate communications and photographs without probable cause.' (Orso, Cellular Phones, Warrantless Searches, and the New Frontier of Fourth Amendment Jurisprudence, supra, 50 Santa Clara L.Rev. at p. 211.) United States Supreme Court authority does not compel this overly permissive rule, and I cannot agree to its adoption."

This ruling is disturbing as many of us travel with smartphones that contain huge amounts of private texts, letters, and contact information.  Would this rule be extended to  tablet computers or even laptops?  An attorney's smartphone should already have password protection if there is any data on it that pertains to a client's files.  But more important, this ruling could open the door to searches of smartphones after even a minor charge (that may not even require access to a cellphone for prosecution).  Another precaution - although its value might be questioned - is not to have the phone on your person while traveling.

The defense has indicated it plans to appeal to the U.S. Supreme Court, but whether that Court would decide in favor of Fourth Amendment rights given the chance to further put holes in the exclusionary rule, does not hold out much hope for individual rights.