Know your standards of review

Just trying a case is trying enough.  How can a trial attorney be expected to look beyond the immediacy of trial and anticipate what a justice (or even three of them) may need for an appeal that may never be filed?  It’s understandable that an attorney may want to focus on winning at trial, but the trial attorney is the only person who is in a position to protect the case in the event an appeal is required.

          At a recent seminar for trial attorneys, I asked them to list the standards of review on appeal.  Not one of them could give me the correct answer.  One attorney queried, “Preponderance of the evidence?”  When preparing a case for trial, the attorney must be mindful of who has the burden of proof on the elements of the claim and defenses.  The next question is whether that burden is satisfied by a preponderance of the evidence or clear and convincing evidence. 

         Standards of review only come into the picture after the trial, when there is something to review.  No wonder trial attorneys pay little attention to the appropriate standard of review.

          A standard of review indicates how the reviewing court looks at a purported error.  Perhaps it is easier to imagine the justices putting on a different set of glasses to look at different errors.  The standard of review must be established from the onset; how else does the court know how to view the error? 

          For the trial attorney, knowing the standard of review is important because it gives guidance to the attorney on how to approach the area, presenting a good record, and educates the attorney as to what must be demonstrated in the record to be successful.  These aspects of how to approach an error will be discussed as we go through the different standards of review.

Back from London and Wales

Some people are so focused on posting blogs.  I am simply in awe of them!  (As you might have guessed, I am not one of those people.)  I guess I figure that you don't need to hear from me every day, or even every week.  I write when I have something important to say and not when I feel like hearing my voice (or writing my words) without purpose.

I really enjoyed Wales and managed to see four plays in London.  For those ten days, I was not an appellate attorney, I was a writer, photographer, and just plain tourist.  It was a very relaxing time and I encourage all attorneys to take breaks and vacations from work.  If you can truly leave your work behind, you will come back more energized and relaxed.  (Of course, I might take it to an extreme with my vacation schedule.)  And while our clients might love us, it is our family and friends who will be there for us long after our clients' cases have concluded or we retire.

On a more serious note, shortly before the trip I learned that my boyfriend Tony was diagnosed with esophageal cancer, stage 3.  It was a big blow to us and we are trying to recover our footing.  Needless to say, our lives have taken a new direction.  Not only will we be involved with many doctors and medical personnel, but we will be meeting new people.  Everyone has a story to tell and they all seem to be eager to share their experiences.  Forget about small talk!  And if there is a choice of being with Tony rather than writing a blog, well, you can only guess who comes first.

Another point - try not to work so hard.  Life isn't always so neat and tidy.  A family member could easily get sick or have an accident, and what do you do if your calendar is so packed with appointments.  Make time now, when everyone is in good health, but make time when they need you.  Everything else is secondary.

Okay, enough of the personal stuff.  I want to write a few posts on standards of review.  I know, it doesn't sound that sexy, but trial lawyers really need to be aware of how the appellate courts will view their cases.  Each standard has its own set of rules, including how the case is viewed, and that means you need to be aware of these rules at the trial level, and the appellate attorney needs to be tailor his or her arguments to address these standards.  It is not simply a matter of the trial court made an error and it needs to be fixed.  But more on that later.

Breach of contract? You decide.

It's difficult to think of work as I pack for Wales, but I felt I had to report on this case from Stuttgart, Germany: the plaintiff, Demetrius Soupolos, hired his neighbor, Frank Maus,  to get his wife pregnant because the couple wanted children and Demetrius was told by his doctor that he was sterile.

Frank agreed.  He was already married and had two children of his own.  Since he resembled Demetrius, the plan seemed like a good one.  He was paid $2,500 for his services, which took place three evenings a week for the next six months, for a total of 72 times.

Alas, Frank was unable to fulfill his end of the bargain, although clearly not for lack of trying.  Frank also had to calm his wife, who objected to the arrangement, telling her, "I don't like this any more than you.  I'm simply doing it for the money.  Try and understand."  (Oh, by the way, did I mention that the neighbor's wife was a former beauty queen?)

Disappointed with the (lack of) results after six months, Demetrius insisted that Frank submit to a medical examination, which revealed that Frank was also sterile.  (Maybe they live next to a chemical waste dumping ground.)  This, of course, raised some questions about how he was able to father two children.  His wife then confessed that Frank was not the real father.  Ouch!

Now Demetrius is suing Frank for breach of contract and demanding return of his $2,500.  Frank refuses to refund this payment for his hard labors, alleging that he did not guarantee conception and only agreed to give it his honest efforts.

There is no indication that Demetrius asked for assurances or insisted that Frank undergo a physical exam before performing his duties.  And Frank apparently believed that he was up to the task based on what appeared to him to be his past successes.

This situation will probably end up in some law school exam.

Not another trip!

Yes, it's true.  While some might have thought that I'd learned my lesson after spending an extra 10 days in Bangkok last December, I am off on another adventure.  This time I am going to London and Wales (Cardiff and Newport).  Well, someone has to spend money to keep the economy going.  (Actually, I would be supporting two economies.)  Of course, I will try to remember my meditation techniques and refresh my brain after intense legal research. I will also be dragging along my camera so that I can engage in more creative pursuits.  All in all, an excellent way to recharge the old batteries.

Back after May 3rd!

What does it mean when the Court says your argument lacks merit?

Some time ago I was contacted by an angry client who had lost an appeal.  The client was upset with his attorney.  He pointed to the language of the Court's opinion to support his anger. There it was in black and white!  The Court concluded the attorney's argument "lacked merit."  The client wanted to know if the attorney had committed malpractice and whether classifying an argument as lacking in merit was the same as finding the appeal was frivolous.

Certainly no attorney wants to hear his or her argument lacks merit.  After all, we spend hours and hours thinking of arguments and pondering theories.  A court's dismissive characterization of an argument that it lacks merit is not the language we want to find in an opinion, especially when it is about our argument.

But there is a difference.

A frivolous appeal is determined by two different standards: subjective and objective.  The subjective standard looks at the motives - such as bad faith or for delay - of the appellant and/or attorney.  The objective standard addresses the merits of an appeal from a reasonable person's perspective, i.e., whether the reasonable person would agree the appeal was totally devoid of merit. (In re Marriage of Flaherty (1982) 31 Cal.3d 637,649.)

The pursuit of a frivolous appeal is not necessarily malpractice.   The issue of whether an appeal is frivolous is a question of law, while the issues of breach of duty, causation, and harm, all elements of a legal malpractice action, involve questions of fact.  (Dawson v. Toledano (2003) 109 Cal.App.4th 387, 396.)

Nor does a conclusion that an argument lacks merit necessarily mean that it is frivolous.   In Friends of Riverside's Hills. v. City of Riverside (2008) 168 Cal.App.4th 743, the court confirmed a party's right to raise issues that are "arguably correct, even if it is extremely unlikely that they will win on appeal.  An appeal that is simply without merit is not by definition frivolous and should not incur sanctions.  Counsel should not be deterred from filing such appeals out of a fear of reprisals."  (Id. at p. 756, citing In re Marriage of Flaherty, supra, at p. 650.)

In Applied Business Software, inc. v. Pacific Mortgage Exchange (2008) 164 Cal.App.4th 1108, the court stated:

"An appeal is not frivolous just because it has no merit . . . An unsuccessful appeal 'should not be penalized as frivolous if it presents a unique issue which is not indisputably without merit, or involves facts which are not amenable to easy analysis in terms of existing law, or makes a reasoned argument for the extension, modification, or reversal of existing law.'"

(Id. at p. 1119; citation omitted.)

When we are representing clients, sometimes we find there are not many good arguments left to us.  We may be dealing with cases that are not addressed in any research materials or we are asking the court to apply existing law to a novel set of facts.  We must be able to assert such arguments free of the threat of sanctions.  That is part of our client's right to free access to the courts but it may be of little comfort when the client demands to know why that argument we crafted has "no merit."

In the final analysis, a better approach might be for the courts to state that opposing party's argument was "more persuasive," implying a balancing of arguments, rather than a rejection of ours. As noted in Dodge, Warren & Peters, Ins. Services, Inc. v. Riley (2003) 105 Cal.App.4th 1414, 1422, "[A] reasonable attorney may well have believed in their merit."