Meditation for Attorneys - Part II

It's been almost a week since I returned from Spirit Rock after completing the course on "Meditation for Attorneys."  I enjoyed my time at Spirit Rock and did not find it difficult to remain silent for extended periods of time.  Almost 100 attorneys and law students attended; it was about evenly split between females and males.

From the first meeting, we voiced our concerns and interests.  Many of those attending felt overwhelmed by their clients' problems and wanted to find a way to set boundaries so they could effectively help their clients.  Others wanted to slow down and hoped to find more balance in their lives.  Stress reduction, balance, and empathy were mentioned.  I felt I had a lot in common with many of the attendees.  I was especially pleased that law students were seeking to address these issues even before they practiced law!

Studies have shown meditation can be help in stress reduction and addressing certain ailments that are exacerbated by stress.  I recently watched a TV show that confirmed meditation produces changes in the brain.  (I am assuming most, if not all, were positive.)  From the start, the teachers at Spirit Rock acknowledged the high amount of stress lawyers face because our clients come to us with problems and they depend on us for assistance.  We may feel we have to win for our clients but every attorney knows you cannot win all of your cases.  Defeat is a crushing blow for most of us.  Since we typically handle more than one case at a time, we are faced with a variety of problems.  If we don't set boundaries, and find some balance in our lives, then the emotions and problems will be overwhelming.

The legal profession needs lawyers who care and can empathsize with their clients.  Those attorneys who become overwhelmed will not be effective but at least the seeds of empathy are there.  I would not want to work at a job where I had to cut myself off emotionally or just didn't care.  The obvious solution is to protect ourselves so that we can protect our clients.  What most people don't realize is that attorneys generally work long hours and often give generously of their time on volunteer activities.  Attorneys may protest that they don't have time to meditate.  Fortunately, the time investment can vary - even for just a few minutes a day - and meditation doesn't require expensive equipment.  It is a way of taking care of ourselves, being more effective for our clients, and bringing a balance to our lives that enables us to look forward to Monday morning, rather than dreading it.

Meditation for lawyers?

My goal with this blog is to write about things of interest to trial attorneys from an appellate perspective.  You know, preserving the record, making objections, etc.  It's not easy trying a case at the superior court level and also trying to think on another level as to what an appellate attorney might need to protect the case.  Clear thinking is always required.

Being an attorney is not just a job.  It seems to invade every area of our lives.  If you go out for a social event, how often does the word "attorney" come out of your mouth during conversation?  How often do you spend thinking about your cases?  If you are like me, the answer is that you spend a lot of time thinking about your client(s), strategy, the facts of the case, and the legal principles involved.  I am sure there are some attorneys who can turn off their brains at 5:00 p.m., but I don't know who they are.

Turning off our brains?  Have you ever prepared a brief and then put it aside for a few days or more so that when you come back to it, you can look at it with fresh eyes?  I try to take breaks between drafts, otherwise they all start looking alike and I miss errors because my mind fills in the blanks.

To help clear my mind, I decided to sign up for a "silent" retreat at Spirit Rock in Marin County.  This retreat is structured specifically for attorneys and focuses on meditation.  Most of my Southern California friends tease me about this (while probably silently applauding me) while my Northern California pals have nothing but good things to say about meditation and Spirit Rock.  (Perhaps we really should divide this state.)  I have great hopes for this seminar.  While the seminar is for attorneys, I view it as helping improve my life generally, which translates to improved performance at work.  I just don't buy the stereotype of Type-A, workaholic attorneys as always being the best choice.

Now some friends and colleagues doubt that I can survive three days of silence. Bets are being taken even as I write this. I guess we won't have an answer to that question until after the retreat as I won't be talking until then.

The court of appeal discusses errors in preserving the record

Last week I moderated a panel of five justices from our Court of Appeal in Santa Ana.  Some refer to our court as the "4/3" or the Fourth Appellate District, Division Three. Almost 100 attorneys attended the event and we focused on answering questions that those practitioners new to the Court might have.

Since most of the attendees were trial attorneys, I asked what sort of mistakes were made at the trial level that could hurt a party's chances on appeal.  The first response, made by Justice Eileen Moore without the slightest hesitation, was that errors were often made in the format and preparation of the special verdict form.  "Sometimes we look at the verdict and can't tell who prepared it."  The verdict form needs to be prepared with an eye toward a possible appeal.

The panel seemed to be in agreement that there were problems with objections - not being made, the grounds not stated, or made on the wrong grounds.  The follow-up to an objection is to make sure you get a ruling from the judge or you may have just waived your objection.  Another area involved an offer of proof.  Justice William Rylaarsdam,  Justice William Bedsworth, and Justice Kathleen O'Leary offered suggestions in this area:  If you are trying to get in evidence and the trial court is inclined to exclude it, make an offer of proof that is comprehensive enough so that someone who is not attending the trial can decipher it.  On the flip side, be sure to present a cogent argument as to why the evidence should be kept out.   In each situation, remember that you are trying to preserve the record for another court.

Justice Richard Fybel also noted problems with statements of decision.  He touched on the problems associated with failing to request one that covers material issues, and objecting to the statement of decision, where appropriate.  Perhaps it is because most attorneys are trying cases before a jury or there is little written on statements of decision, but I find this to be a big problem in appeals.

In future posts, I intend to examine all of these problems and offer some guidance to trial attorneys that might help protect their appeals.

The uses/abuses of motions in limine

From time to time, the appellate courts have voiced a strong disapproval of the use of motions in limine, which they observe have evolved into dispositive motions.  Trial judges also experience a certain irritation when faced with a mountain of motions in limine, all designed to keep out all unfavorable evidence, essentially leaving an opposing party with nothing to offer at trial.  (As the mountain grows, so does the risk of having a judge deny most of the motions and deciding to rule on them as the issues arise during trial.)

Motions in limine have not only been used for their intended purpose - to keep out inadmissible evidence before a jury hears it - but as substitutes for motions for summary judgment or adjudication, demurrers or motions for judgment on the pleadings, nonsuits based on the evidence, and directed verdicts.

In Amtower v. Photo Dynamics, Inc. (2008) 158 Cal.App.4th 1582, the court noted:

"What in limine motions are not designed to do is to replace the dispositive motions prescribed by the Code of Civil Procedure.  It has become increasingly common, however, for litigants to utilize in limine motions for this purpose."

(Id. at p. 1593.)  In a concurring opinion in R & B Auto Center, Inc.v. Farmers Group, Inc. (2006) 140 Cal.App.4th 327, 371, Justice Rylaarsdam wrote, "To have the sufficiency of the pleading or the existence of triable issues of material fact decided in the guise of a motion in limine is a perversion of the process."

The Amtower court also noted, "The disadvantages of such shortcuts are obvious.  They circumvent procedural protections provided by the statutory motions or by trial on the merits; they risk blindsiding the nonmoving party; and, in some cases, they could infringe [on] a litigant's right to a jury trial. (Cal. Const., art. I, sec. 16.)  Adherence to the statutory processes would avoid all risks.  Furthermore, these irregular procedures can result in unnecessary reversals."  (Id. at p. 1594.)

The use of a motion in limine may suffer from a number of potential problems:

• It may fail to comply with the procedural rules applicable to the motion it attempts to mimic, such as a lack of sufficient notice, an opportunity for opposition, and in motions resembling a motion for summary judgment or adjudication, the lack of a separate statement and written objections.


• It may deprive a party of the right to a jury trial on the evidence.


• It may increase the risk of a reversal on appeal, and, as noted in Amtower, the party may face a standard of review that is less favorable than the one provided for in reviewing a dispositive motion.

If you have obtained a dispositive result based on a motion in limine, you may ask yourself whether you have provided your opponent with an issue on appeal, and quite possibly, a reason for the appellate court to reverse your win.  In the long run, it might be preferable to bring the appropriate dispositive motion and comply with all procedural requirements.  That might mean planning for a dispositive motion earlier in the proceeding than on the eve of trial, but it just might be worth it.

To appeal or not to appeal

Many factors are involved in the clients' decision to appeal a case.  One aspect of the decision has to involve the economics of appealing.  While I am admittedly miserable at math, I advise clients to balance the chance of success against the costs and fees involved.  If an attorney's fee provision or statute is involved, I advise the clients - both at our first meeting and in writing - that if the appeal is lost, they may also have to pay attorney's fees to the opposing side.  Even if attorney's fees are not involved, clients may still incur significant costs for retrying a case after a successful appeal.

Criminal cases are different because they usually involve a defendant's freedom.  But the decision to appeal still must be balanced against the risks and benefits.  Take a look at United States v. Beltran-Moreno (9th Cir. 2009) 2009 WL 310915.  In that case, the 9th Circuit soundly chastised the appellate attorneys for appealing from an erroneous sentence that benefited the defendants.  The trial court calculated the mandatory minimum sentence 20 years lower than that required by statute and ignored Guidelines that suggested the defendants be imprisoned for life.

Rather than accepting these inadvertent gifts, and "[f]or reasons beyond [the 9th Circuit's] understanding," defendants' appellate counsel appealed their sentences, relying on an argument that had been "squarely foreclosed by decades-old circuit precedents." (Id. at p. 1591.)  The 9th Circuit observed, "Counsel do not urge us to reconsider any of these precedents; rather, they appear simply to be ignorant of the controlling law." (Id. at p. 1592.)

Fortunately, this strategy did not result in more prison time because the appellate court cannot raise a defendant's sentence if the government has not appealed.  The appellate attorneys could take some comfort from the fact that even though they had potentially exposed their clients to a longer, if not life long, detention, no damage was actually done.

Except, of course, to the attorneys' reputation, when the 9th Circuit concluded its Opinion, noting that the right to counsel includes an attorney's skill and knowledge:

       "We remind counsel that the professional norms that establish the constitutional baseline for their effective performance indisputably include the duty to research the relevant case law and to advise a client properly on the consequences of an appeal.  While it is ultimately the client's right to pursue an appeal, we seriously question the quality of counsel's advice when an appeal with essentially zero potential benefit and a significant opportunity for harm is pursued in such a manner as this one has been.  We also remind counsel of their ethical obligations not to present arguments to this court that are legally frivolous.  Fortunately, in this instance, counsel did no serious harm to their clients, and have escaped this appeal without the imposition of sanctions."

(Id. at p. 1594.)  Ouch!