California Supreme Court Justice Moreno to retire at the end of February 2011

Rather than starting out the New Year quietly, trying to readjust to work after the Holidays, the appellate world came out with a number of new decisions and announcements.  First, California Supreme Court Justice Carlos Moreno, 62, announced he was stepping down on February 28, 2011.  This announcement came within days of the start of Chief Justice Tani Cantil-Sakauye's new position as Chief Justice on the Court.  He is the only Latino on the Court and it is hoped that Governor Brown will appoint a minority to fill this position.

Justice Moreno became a municipal court judge in 1986, served as a federal judge for several years, and then was appointed to the state Supreme Court in 2001 by Gov. Gray Davis.  He was also on President Obama's list for the U.S. Supreme Court opening in 2009.

While serving on the California Supreme Court, Justice Moreno voted to block enforcement of Proposition 8, the ban on same-sex marriage.  His rulings also include four 2005 decisions that upheld same-sex couples' parental rights and the right of domestic partners not to be discriminated against by businesses.  Justice Moreno also sided with the majority in the 2008 decision that affirmed the rights of gays to marry in California.

Justice Moreno has indicated that his reasons for stepping down include family and finances.  He has said he is exploring future options such as private practice and alternative dispute resolution.  Because it is anticipated that his successor will be liberal, it may not do much to change the Court's balance.  In the past, Governor Jerry Brown has been very active in appointing minorities and we can probably expect the same in this situation so that the Court can reflect the diversity of the state of California.

Announcing my new book!

Happy New Year!

2011 promises to be a year of changes, at least for me.  I started off this year by taking over fifteen years' worth of articles and inputting the printed versions into my scanner.  This was part of my resolution to have a greener office and reduce paper files.  Little did I realize how much I had written over the years until the articles were collected into a single pile, which is now destined for the trash can.

When I write my articles, I try to keep things fresh.  Of course, over time some of those articles are outdated and the laws have changed.  As I scanned each article, my eyes would pick up on a phrase or two.   I could see that I was giving some of the same advice back in 1996 that I am giving to this day.  Some things never change!

Through the years, many of you have thanked me for my articles and advice, but I always worried that a piece of advice buried in an article from 2003 would not be remembered when you most needed it.  Despite our best intentions, articles tend to be read and then mostly forgotten.  If we save them, they are put in a file that we seldom pull out.  If you are like me, your organizational skills may leave something to be desired and finding written articles is not always that easy or convenient.

I have also given seminars on appellate issues.  Attorneys tell me that they learn some valuable tips at my seminars, but again, my fear is that my advice will be forgotten when the need arises.

So, I decided to take my knowledge, gained after over 30 years of experience in appellate law and summarize my tips in a book that was easy to reference.  I have spent months working on my book and it is nearing completion.  My plan is to print it as a hard cover book.  For those of you who prefer to read online, the book will also be available as an e-book.

The focus of my book is on providing tips on appeals to trial attorneys who are working at the trial court level.  At that point, trial attorneys are often working without the assistance of an appellate attorney and before the need for an appeal arises.  The trial attorney is usually focused on winning at trial.  But the trial attorney needs to know how to protect a potential appeal at the trial court level  so that when an appellate attorney comes on board, the appeal is free of mistakes that will hurt the case at the appellate level.

In the coming months, I will let you know my progress and when you can order my book.

Happy Holidays

Here's an interesting question: Can the human brain take in new information, especially about legal topics, when it is attending Holiday parties, eating and drinking, thinking of gifts to buy, and preparing for the coming New Year? I am not going to compete with this sensory overload and encourage everyone to have a great Holiday season. Enjoy every minute of 2010.   I will be back in January 2011!

Oral argument before a "hot" court of appeal

Yesterday I was scheduled for afternoon oral argument before the Court of Appeal, Fourth Appellate District, Division Three in Santa Ana.  Before the attorneys checked in, we were waiting for the courtroom to open and talked about the "cloud" of oral argument.  That's my term, because until I finish with oral argument, I am focused on my case and find it hard to think of other things.  No addressing Holiday cards or writing plays.  My full attention is focused on knowing the record and practicing my oral argument.  One attorney commented that in an hour or two, the cloud would be lifted and we could become normal people again.  I expressed my hopes - not for peace on earth - but for a pill that would take away all of my nervousness and that knot in the bottom of my stomach.

Because I was last on the calendar, I had the opportunity to observe all of the arguments.  I made mental notes of my observations so I could pass them along to you.  Our Court in Santa Ana is known as a "hot" court or bench.  That means the justices are heavily involved in asking questions.  I have been in some courts where the court listens patiently and never says a word.  The attorney has no clue as to what the court is thinking or how to address specific concerns that are never expressed.  Don't worry!  You won't have that problem here.  This Court is fully engaged, which is both a pleasure and a concern.  Why?  Because that means the appellate attorney really has to know the record and prepare to answer questions.  And not just answer questions pertaining to the case, but questions that challenge the attorney's position.

So, here are a few observations:

1.  Always answer the question put to you by the justices.  NOW!  Don't tell the justice that "I will get to that in a moment."  The more difficult part is actually answering the question posed.  I observed several attorneys squirming after a question was asked and trying to dance around it by giving other information that would help their position.  And if the asking justice doesn't insist on an answer, you can be sure that one of the other justices will follow up on the omission.

2.  Concede the obvious.  If a point or fact is bad for your position, and you are asked about it, concede the obvious.  Your credibility is at stake here and denying the obvious is going to hurt you.

3.  If you are going to talk about new cases or statutes, be sure to advise the other side.  One justice refused to hear about new statutes, opining that the failure to give notice to the other side was "sandbagging."  Maybe not.  It could have been an innocent omission done by someone unfamiliar with the rules, but it also could have been sandbagging.  It won't work here.  If you have new authority, let the other side know.  In addition, why would you want to keep the Court from knowing this great new information?  Let everyone be prepared and then you can have an intelligent discussion about the case.

4.  Don't start off telling the court about the facts of the case.  They will stop you immediately.  Assume they know the facts and only work in the facts relevant to your (focused) argument.  When an attorney starts off with "The facts of the case are . . .," the Court knows it is dealing with someone unfamiliar with oral argument.

5.  Know your record!  You may get asked detailed questions as to your evidence and where it is in the record.

By the way, one of the "attorneys" presenting argument was a certified law student.  She presented argument in a criminal case and I thought she did extremely well.  She stood firm on her position and did not wither away under intense questioning by Justice Rylaarsdam.  At the conclusion of her argument, Justice Bedsworth complimented her on her performance.  I have to admit that I felt a measure of pride in her performance.

Now it is less than 24 hours later, the cloud has lifted, the knot in my stomach is gone, and I can start addressing a few Holiday cards.

Winning on appeal

Winning on appeal points out another difference between trial and appellate attorneys.  It also demonstrates a study in delayed gratification.  While the trial attorney will devote a substantial amount of time in trying a case, which means a long-term adrenaline rush, he or she may almost immediately observe the fruits of those efforts when a decision is reached by the trial court or jury.  On the other hand, the adrenaline will build and build as the appellate attorney prepares for oral argument, which requires the attorney to be vigilant as to the questions and reactions by a number of people.  After the hearing is over and the matter is deemed submitted, the appellate attorney goes back to the office without knowing the final outcome.  Some of us - and I include myself in this group - are almost completely useless after the adrenaline has returned to a normal state.  All that is left for me is a frozen yogurt "reward" and a good nap.  And then the waiting begins!  Imagine a trial attorney waiting a few weeks or even months to find out what happened after the case is delivered to the trier of fact.

Even if gratification is delayed, it is still a rewarding experience to win an appeal.  This is especially true if you are representing the appellant, who is expected to lose based on statistics.  And if you represent the respondent and win, well, then, it is no big deal as everyone really expected you to win.  Better yet, if you win and the case is published, that's especially good news because you have participated in shaping the law and your name will be written on the books after you are dead and buried (or otherwise).

Sometimes winning isn't about the money and you may feel satisfied even if you haven't recovered a single penny for your client.  Which leads me to my most current win, Entezampour v. North Orange County Community College District, 2010 Cal.App. LEXIS 2053, which was decided by the Court of Appeal, Fourth Appellate District, Division Three.  In the scheme of things, it may not have been that big a case.  I didn't obtain a big financial victory for the client.  In fact, the case was only at the demurrer stage, but if it had not been reversed, the trial court's judgment would have represented the end of the line for Mr. Entezampour, who was fighting to become a full-time teacher at Cypress College.  Mr. Entezampour was not new to the game; he has been a teacher for over 26 years.  If you spoke to him, you would know how much teaching means to him.   Even though I never observed one of his classes, I would bet that he is an excellent teacher.

Not only was Mr. Entezampour a teacher, but he went on to become an administrator at Cypress College.  He continued to teach part-time, and when the opportunities arose, he applied to teach even more classes.  When Mr. Entezampour's contract as an administrator was not renewed, pursuant to the Education Code section 87458, he had certain "retreat rights" to become a full-time probationary teacher.   Everyone acknowledged he had such rights - the Education Code, the school's written policies, and even personnel at Cypress. And Cypress College even had openings. But they argued that even though Mr. Entezampour had "retreat rights," that didn't translate to a corresponding duty on the school's part to honor those rights.  Go figure.  Mr. Entezampour decided to challenge that decision by a petition for writ of mandate, which was tossed out by demurrer.  And up we went to the appellate court, which decided in our favor and published the decision.

Had the appellate court decided against Mr. Entezampour, that most likely would have been the end of it.  The chances of getting relief on rehearing or from the Supreme Court are so difficult that the Court of Appeal is really the court of last resort for most of us.  This decision breathes new life into Mr. Entezampour's quest for a teaching position.  For me, the decision was immensely satisfying.  It was a case that I took because I felt that a real wrong had been committed and I had the chance to find a remedy for that wrong.  Mr. Entezampour will continue his fight, and perhaps get a job that is worthy of his skills and talent.