The importance of objections

The importance of objections in preserving the record on appeal cannot be emphasized enough.  To me, it is as important as saying “I do” during a wedding ceremony.  Until you speak those two little words, the wedding cannot be completed.  In a similar vein, until you object, you have not preserved the issue on appeal.

Challenging the admission of evidence generally takes three forms, depending on the timing:

1.     A pre-emptive motion in limine before trial begins;

2.     An immediate objection at the time the evidence is to come in; and

3.     A motion to strike if a witness answers before you can object or before the judge can rule on your objection, or the witness's response is non-responsive.

The biggest problem I have observed in this area is that the trial attorney fails to make a proper objection on the ground to which an appeal is being taken or the judge fails to rule on the objection.  For instance, these problems can arise when an objection is made and then the attorneys and trial court engage in a discussion, losing sight of the fact that ruling has not been made.

Answering questions during oral argument

     In the past I have lectured on the importance of answering the questions asked of you by the justices during oral argument.  After watching an afternoon of oral argument last week, I thought I might expand on this advice:

• Most attorneys come into court with an outline and a presentation in mind.  They may be so wedded to the presentation that questions from the bench may seem like a distraction and the attorney rushes to return to his or her script.  Stop!  Think of a question as a gift because it allows you a glimpse into the justice's thinking so you can answer any concerns the court might have.  You have limited time; why not spend it on an issue that you know is pivotal to the case?


• Let the justice ask the question.  The question might come out as a single sentence or it may be followed by an example or an additional question.  Don't jump in without allowing the justice to finish the question.  I observed several attorneys who were so anxious to answer a question that they stepped all over the justice's question.  Not only is it discourteous but the attorney takes the risk of answering the wrong question.


• If you don't understand the question, say so.  I have never observed a justice losing patience with an attorney who asked for clarification.


• Answer the question.  I know it sounds simple, but attorneys often try to give a quick answer, so as to move away from an area that they perceive as weak for their position, and then return to a positive presentation.  Some justices speculate as to whether the attorney intentionally fails to answer the question.  Listen and answer the question as best you can.  Be prepared for a question that probes the weaknesses in your position.


• Because answering a question requires you to listen, think and speak without a prepared script, I find that attorneys often become more relaxed and natural when a question is interposed.


• Don't try to avoid making any concessions.  You will lose your credibility if you try to deny what is obvious to everyone in the courtroom.


• Eliminate statements such as "to be perfectly honest," "honestly," or "to tell the truth."  It raises an inference that you might have been lying before that statement.  If your words are spoken truthfully, then the justices will be able to pick that up.


• I would eliminate the frequent use of "I believe," "I think," or "in my opinion."  Of course, most of this is your opinion, and when it is not, such as a case holding, you weaken your position by stating this is what you think the case holds.


• Listen to the questions asked of your opposition and assume you might get the same or similar questions.  Prepare yourself.


• If you are asked to prepare a letter brief on a question, either before or after oral argument, consider it another opportunity to shed some light on an issue that is troubling the court.  This is your chance to enlighten the court.  Don't overlook the importance of these requests.


• Avoid asking if the justices have any questions. I have never met a justice who was too shy to ask a question and an invitation has never prompted a question that a justice was too afraid to ask.  The invitation is probably made in an attempt to seem polite but it is really unnecessary.

Abuse of the Discovery Act

Last week I reported on abuses of the summary judgment motion.  Now abuses of the discovery procedure are under examination.  In Clement v. Alegre (2009) 177 Cal.App.4th 1277, plaintiffs appeal from the imposition of $6,632.50 as a discovery sanction because they interposed objections to special interrogatories which the discovery referree concluded were "unreasonable, evasive, lacking in legal merit and without justification."  The appellate court agreed and affirmed the order.

The case involves a real estate dispute.  Defendant served two sets of 23 special interrogatories on the individual plaintiff and the plaintiff corporation.  The objections included an objection that the term "economic damages" was vague and ambiguous, partly because the defendant failed to refer to Civil Code section 1431.2, which defines the term.  Plaintiffs also objected that a question that asked the amount of damages identified in answer to another interrogatory was not "full and complete."  And so on . . .

The parties engaged in unproductive meet-and-confer letters, arguing the merits of their respective positions.  The matter was heard by a discovery referee, who found the objections were without merit, among other things.  The referee recommended plaintiffs be ordered to respond and pay sanctions.  The order was ultimately adopted by the trial court.

In affirming the order, the appellate court held that sanctions may be imposed for misuse of the discovery process even if the misuse is not willful. It noted plaintiffs had referred to the statutory definition and then submitted responses that were narrower than the definition.

As to the objection that the interrogatories were not "full and complete," the court interpreted this objection to prohibit reference to other materials or documents, or incorporation by reference, to undermine the numerical limit on interrogatories.  "To conclude otherwise in these circumstances would require a cumbersome redrafting of questions and potentially multiple rounds of discovery, undermining the Act's aim of clarity and simplicity and returning to the era of 'paper[ing] to death' the opposition."

The court also addressed the meet-and-confer process, finding the evidence demonstrated the parties had reached an impasse; however, it found the plaintiff engaged in "game-playing," which was designed to delay the proceedings.  It concluded the referee's findings and award were supported by the record, and furthermore, the trial court did not abuse its discretion. The court confirmed that the discovery statutes require "'a serious effort at negotiation and informal resolution.'"  It went on to state:

Perhaps after 11 years it is necessary to remind trial counsel and the bar once again that '[a]rgument is not the same as informal negotiation' . . . that attempting informal resolution means more than the mere attempt by the discovery proponent 'to persuade the objector of the error of his ways' . . .' and that 'a reasonable and good faith attempt at informal resolution entails something more than bickering with [opposing] counsel . . . Rather, the law requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate.'"

This might be a good case to hang on to in case of frivolous objections or meet-and-confer discussions that lack any genuine attempt to cooperate and resolve the discovery dispute.

Abuse of the summary judgment motion

In Nazir v. United Airlines, Inc. (2009) 2009 WL 3235159, the First District, Division Two wasted no time in its criticism of the summary judgment procedure, particularly in employment litigation, noting it was abused by "deep pocket defendants to overwhelm less well-funded litigants. . . Here we confront the poster child for such criticism in a case involving what may well be the most oppressive motion ever presented to a superior court."

The plaintiff, Iftikhar Nazir, a Pakistani male, worked for United Airlines for over 16 years and was terminated for violating United's zero tolerance policy.  He filed his complaint for harassment, discrimination and retaliation, including two battery and fraud causes of action.

United filed a massive summary judgment/summary adjudication motion, raising 44 issues.  Its separate statement was 196 pages long, many of which the court found - and United conceded - were not relevant.  United also filed a request for judicial notice of 174 pages, bringing the moving papers to the grand total of 1,056 pages.   Plaintiff's opposition was 1,894 pages long.  And while most reply papers are shorter than the moving papers, guess what?  The reply included a 297-page separate statement and 153 pages of exhibits and evidence.  The evidentiary objections were 324 pages in length and contained 764 objections, for a total of 1,150 pages of reply.

The trial court overruled one of United's evidentiary objections, sustaining 763 objections.  The appellate court concluded that the trial court's "ruling" on the objections was manifestly wrong.  It noted the record, "the likes of which we have never seen - not here, not in the combined 11 years of law and motion experience of the members of which panel."

Here are a few findings:

• More than half of the 44 issues failed to meet the burden in CCP 437c that they completely dispose of a cause of action.


• Many of the facts stated in the separate statement were repeated and/or were not material.


• United filed an improper separate statement with its reply papers.


• Evidence was improperly submitted in the reply.


• The court sustained 763 objections and yet no mention was made of the objections in the court's tentative ruling and at the hearing, until the court issued a blanket ruling on the objections in two sentences.


• The objections failed to comply with California Rules of Court, rule 3.1354.


• Some of the objections were made to plaintiff's brief, not his evidence.

In its remarks, the court noted that since the summary judgment procedure is no longer disfavored as it once was, some have expressed concern that we have moved too far in the other direction, particularly in employment cases.  The court concluded, "The incredible volume of material here simply has no place in a system where overburdened trial courts labor long and hard."  It suggested that in the future trial courts could exercise their inherent power to deal with such situations.

This case publicizes the horror stories involving such motions.  United probably paid a lot of money for the attorneys' work product.  But even the appellate court noted, it was not the first time the defendants' lead counsel had been criticized for a defective separate statement.

Blogging as a way of venting

In a recent article that appeared in the New York Times, author John Schwartz examined blogging.  In particular, he noted a Florida lawyer blogged about his negative impressions of a Fort Lauderdale judge and was reprimanded and fined for his blog post.  E-mails and blogs should be avoided as emotional outlets for many reasons.  First, don't expect to have total privacy in your e-mails.  How many of us have hit "Reply to All," when you only wanted to reply to one?  If you drop one character in my e-mail, then it goes to a man in the Midwest.  (Friendly enough, but I don't like confidential communications inadvertently sent to him.)

If you blog, you have to realize that everyone can read your blog, including judges, opposing counsel, present, past, and future clients.  By the time most of my clients have met with me, they have already read my blog.  I try to keep negative comments and emotions out of what I write.  If I have something to say that carries an emotional impact, I would much prefer to deliver it in person or by telephone, so there are no misunderstandings or reading e-mails out of context.

Being a Baby Boomer, it is hard for me to fully appreciate the value of Facebook and Twitter, although I can understand why I have a profile on LinkedIn.com.  Just to give you an example on what is on my Facebook page:

• An announcement about the upcoming 12th Annual Mushing Clinic, which will teach the basics of dog sledding. While I can understand taking your husky to these classes, my American Eskimo, Casper, is a bit dainty and prefers to be viewed as a companion dog, not a working dog.


• One attorney is obsessed with Mafia Wars and is looking for Royal Cigar, Sea Bird, and Dragon Fruit.  He claims he needs help to violently break up a campaign rally in Moscow. I became an appellate attorney so I could avoid violence in the courtroom.


• My friends are constantly asking me to take tests and quizzes.  I think they question how smart I am and simply want proof.  I prefer keeping it a secret.


• Some are playing FarmVille.  Why would I do that?  I like living near the beach.  If I wanted to play on a farm, I would move inland.


• One attorney went to a deposition, another had a mediation.  Yawn!


• Another friend reports a total body count of 469 in Mafia Wars and is "offering you a special bonus to make you as fierce as they are."  Sorry, I restrict my fierceness to writing an Appellant's Reply Brief.


• Another attorney points out it is Fire Prevention Week.  Okay, so I'll hold off for the week.

I feel like my Facebook has been hijacked and I wonder if someone will decide not to hire me for an appeal because I refused to play Mafia Wars.  But I admit, I am part of the Baby Boomer generation, and to be competitive, I have to learn how to appreciate this new form of marketing.

There are other problems with blogging.  Don't blog about judges, your cases, or your clients.   And make sure your clients are blogging as well.  And don't tell the judge you have to go to a family funeral and then blog about your wild weekend in Cabo!