Be nice to your court clerks

When I can, I like to personally file documents with the Court of Appeal in my home turf in Santa Ana.  Of course, I could always mail in the documents or send a messenger service.  Since I spend a fair bit of time on the telephone with the court clerks, it is nice to match up a face with a voice.  In addition, as the attorney who actually prepared the document, I can make minor changes on the spot that a messenger couldn't perform.

On one particular occasion, I walked up to the filing window and found myself behind a man who was disheveled and agitated.   He was speaking in a loud voice.  I could tell that he was handling his own appeal and he was having difficulty understanding why the Clerk, Shahira, would not file his brief.  He thought perhaps she was part of some conspiracy that was out to stop him from getting justice.  Shahira was very patient in telling him why he could not file the document on that particular day, and gave him several alternatives as to what he might do to fix the situation.  She never raised her voice or got impatient with his failure to comprehend what she needed.  I thought she did an excellent job of handling the situation and diffusing an angry litigant.  Of course, she was protected by a glass enclosure while I was standing next to this man!

That brings me to an important point:  always treat court clerks with respect and courtesy.  They can and will help you.  My experience has been that clerks in superior court have too much work to do to spend time counseling people, and they run into complications when people push their limits and seek legal advice.  Court clerks at the appellate level seem to be a different breed.  They are interested in getting it right so that the appeal can proceed smoothly.  If you want information as to how the Court operates, call the clerks.   They can tell you the status of your appeal, how many copies are needed to file a document, who to serve, etc.  They can also say how the Court deals with writ petitions, which can save you bundles of money if you are tempted to file an immediate preliminary opposition rather than waiting from direction from the Court.  (Courts differ on their approach in this particular situation.)

I have spent a lot of time in the Clerk's Office over the years.  I have shared stories and laughs with the clerks.  They have always helped when I asked for it, and sometimes when I didn't.  I have encouraged other attorneys to feel free to call the clerks for information and they have never been disappointed.  Of course, I have a particular affection for the clerks in Santa Ana.  Through the years, some have retired, liked Rachel and Janess, who are probably enjoying their retirement, or others, such as Orlando, who was always so helpful and kind, have met a different fate.  But for those who are there now - Kathy, Toni, Shahira, Lee, Bonnie, Dana, Denise, Alex, Debra, Maria, and Sandra - I just want to thank you for all of the hard work you do, making my life much easier, and helping to enable our clients to have (easy) access to justice.

Oral argument before the 4/3

At a recent luncheon for the OCBA's Appellate Section, Presiding Justice Sills spoke on the state of Division Three of the Fourth Appellate District.  He has been a regular almost every year and gives us the current news about procedures in the Clerk's Office.

This time he spoke about oral argument and suggested that we might want to help attorneys who are new to the Court of Appeal.   The errors he observed were pretty basic and I am sure they could be cured by attending a session of oral argument in advance of your appearance.

Watching oral argument is helpful on many levels.  Since you are not arguing your case, you have the freedom to observe what goes on without the pressure of being prepared to argue.  Watch the justices respond.  Are they engaged?  Are they asking questions?  How effective is the presentation?

When you arrive for oral argument in Santa Ana, chances are the courtroom will be locked until it is time for check-in.  Arrive in time to relax and check in. The attorneys are free to wait in the lobby area.  A calendar is posted and you can get some idea how many cases or panel changes are on calendar.

After the courtroom is opened, the bailiff will stop you at the weapons detector.  Once you have passed that gauntlet, you can enter the courtroom and approach the clerk.  Bring a few business cards.  At that point, you will  be asked for a new estimate for oral argument.

There are a few good reasons to keep your oral argument short.  One of the best is that the shorter your estimate, the higher you rise on the calendar.  Another is that everybody is happy with a shorter argument.  My experience is that if the justices want to hear more from you, they will keep you there until they have heard all they want to hear, no matter what your time estimate is.

If your client is attending, have the client sit in the audience section.  When your case is called, the client does not go up there with you.  Even if you have co-counsel, they should also stay behind unless they are going to assist you with the oral argument.  (Only one person gets to speak!)

If you are the appellant, you will go to the table on the left side, respondents to the right.  Everyone may know who you are, but introductions - name and who you represent - are a good idea.  "May It Please the Court" is a formal opening; some justices prefer it, others don't care.  Tell the court what you are going to talk about.  (Don't talk about every issue; be selective and pick your best issue.)

Answer the questions asked of you by the justices.  Questions present a great opportunity to focus on the important aspects of an issue.  Don't read your oral argument!  How can you engage the Court if you are looking down at your paper?  An outline should be enough to remind you of what you want to say.

Don't close with "If you have any question, . . ."  (Yes, I've done it too.)  Finish with a statement about why the lower court erred, or was right, and what the Court of Appeal should do.

When the Court announces the matter is submitted, you are free to leave.  Don't linger outside the courtroom; the sound carries.  And be courteous to opposing counsel, no matter what was said during oral argument.

The Perils of the Electronic Age

The Electronic Age changes everything!  Take a look at InSyst, Ltd. v. Applied Materials, Inc., 2009 WL 215279 (Cal.App. 6 Dist.).  In that case, decided by the Sixth District, Justice Rushing noted e-mail "has virtually supplanted regular mail."  The issue presented was whether an e-mailed notice of entry of judgment was sufficient to trigger the time to file a notice of appeal.

This case was deemed to be complex litigation.  The trial  court issued a standing order authorizing service via an electronic service provider, which was to be considered as valid and effective service, having the same legal effect as a paper document.

The court's judgment was file-stamped as electronically filed on the court's Web site.  The attorneys were then sent an electronic mail message that identified the document and provided instructions for accessing it on the Internet.  The notice contained a hyperlink that, when clicked, would lead to a file-stamped copy of the judgment.

The court analyzed California Code of Civil Procedure section 1010.6, which allows the trial court to adopt local rules permitting electronic filing and service of documents in certain actions, including complex litigation.

The court also noted that two documents trigger the time to file a notice of appeal:  a Notice of Entry of Judgment or a file-stamped copy off the judgment.  (CRC, Rule 8.104(a)(1) and (2).)  Of interest - but not part of the opinion - is the fact that there is no pre-printed form entitled "Notice of Entry of Judgment" and that a file-stamped copy serves the same purpose, possibly setting up a trap for the unwary because the file-stamped judgment does not contain the term "Notice of Entry."  (That's why I like to file the notice of appeal before the earliest date possible.)

While the judgment can be e-mailed, the problem here was that notice of filing was given, but the recipient still had to click on a hyperlink to find the file-stamped judgment. The court concluded:

"We see no provision in the new statute, section 1010.6, or its  implementing rules that authorizes serving a document by giving a party notice of where he or she may find it.  Rule 8.104 insists that certain formalities be observed in order to create a triggering document, either proper titling of a notice of entry of judgment, or obtaining a file-stamped copy of the judgment itself.  We do not regard an e-mail explanation of where to electronically locate a judgment as the equivalent of the electronic transmission of the document."

Raising Issues for the First Time on Appeal

One of the major obstacles faced by appellate attorneys, who are usually called into a case at the end of the proceedings, is the limitation on raising new theories at the appellate stage.  As a general rule, an appellant cannot assert a new theory for the first time on appeal.  This rule is based on fairness and incorporates principles of estoppel and waiver.  Of course, such a rule has profound implications for appellants and their trial attorneys. 

Having stated the general rule, I want to note there are exceptions.  In Brown v. Boren (1999) 74 Cal.App.4th 1303, the court stated:

“It is a firmly entrenched principle of appellate practice that litigants must adhere to the theory on which a case was tried.  Stated otherwise, a litigant may not change his or her position on appeal and assert a new theory.  To permit this change in strategy would be unfair to the trial court and the opposing litigant . . . To be sure, we have discretion to consider a new theory on appeal when it is purely a matter of applying the law to undisputed facts.” 

(Id. at p. 1316.)

          Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal. App.4th 820 goes one step further, stating, “Only when the issue presented involves purely a legal question, on an uncontroverted record and requires no factual determinations, is it appropriate to address new theories.”  (Id. at p. 847.) (Italics in original.)

          The appellate court may also exercise its discretion and consider constitutional issues raised for the first time on appeal “especially when . . . the asserted error fundamentally affects the validity of the judgment . . . or important issues of public policy are at issue . . .”  (County of Orange v. Ivansco (1998) 67 Cal.App.4th 328, 331, fn. 2.)

          Now contrast this general rule with the principle that the appellate court may affirm a judgment or order if it is correct on any  theory, regardless of the trial court’s expressed reasons.  As commonly stated, the appellate court examines the judgment and not the rationale.  The result is that the appellate court and even the respondent can raise new issues, unless the appellant would be prejudiced, such as the situation where the new theory involves an issue of fact.  “The parties’ failure to raise the issue in their original appellate briefs does not bar our consideration of it if the parties have had a fair opportunity to present their positions.”  (Woodward Park Homeowners Ass’n v. City of Fresno (2007) 150 Cal.App.4th 683, 714.) 

Other situations come to mind, such arguing how a complaint can be amended at the pleading stage or a change in law that would have validated the new theory had the law been in existence when the case was tried.  The lesson is that the prohibition is not absolute but the trial attorney should make every attempt in trying to present the  appellate court with a complete record, rather than hoping for exception.

Is it an appealable error or attorney malpractice?

In my previous posts, I've examined the types of errors that an appellate attorney may find in reviewing the record.  Some of these errors, such as prejudicial error or error that is reversible per se, strengthen an appeal.  Others, such as harmless or invited error, can ruin the chances for a successful appeal.

It isn't uncommon for the client to wonder why he or she lost at trial, especially when so much of the trial is difficult for a layperson to comprehend.  There are times when the client will ask about an appeal but the real remedy is an action for attorney malpractice.  For instance, if the trial court dismisses a case because the plaintiff has blown the statute of limitations, the error could be due to an attorney’s negligence and the judge’s order was proper.  Other errors are not so obvious to a client.  For example, the attorney may have failed to preserve the record by not making a proper objection or an adequate offer of proof.  If the attorney has committed these errors, especially failing to raise matters below, then the client’s remedy is beyond the reach of an appeal.

As an appellate attorney, I often receive case referrals from trial attorneys.  Of course, I want to honor these valuable associations but the duty to the client transcends these relationships.  Quite often, the relationship between the client and the attorney is already fractured, and the client may even suspect attorney malpractice.  I have to tell the client that the error is not appealable but there is a potential malpractice claim. 

In many of those cases, the client has had some warning about the attorney's performance but for whatever reason, the client hoped the attorney's performance would improve.  Perhaps the answer lies in educating the public about what they have a right to expect from an attorney, how to address their complaints about an attorney's performance (or lack of it), and when to end the relationship without prejudicing their rights.