There are no meritorious grounds for an appeal.

 

(Continued 10 GOOD REASONS NOT TO APPEAL)

2. Let’s say the plaintiff has obtained a judgment against the defendant. The defendant may be unhappy with the verdict, but there are no real judicial errors to challenge or prejudice to the defendant. The jury just didn’t buy the defendant’s version of events. The defendant may want to appeal just to gain some leverage in future negotiations or to delay payment.

Two problems: ethically I can’t file appeal on that basis. Nor can I file an appeal for the plaintiff simply to give him or her leverage to settle a case. The second problem is that pursuing an appeal for the wrong reasons – harassment, improper delay, bad faith, etc. – can open the door to sanctions against both the lawyer and the appellant.

Appellants and their attorneys may be subject to sanctions for pursuing an appeal that is “frivolous” or “taken solely for delay.”  (C.C.P. § 907; C.R.C. rule 8.276(a)(1).) While a client may be sanctioned for pursuing an appeal to harass the other party or delay the effect of the judgment, the attorney faces an additional ground: that the appeal has no merit, meaning any reasonable attorney would agree the appeal is totally and completely without merit. (Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) I am not interested in risking my license to file an improper appeal. In addition, my retainer agreement provides that I can withdraw if I discover the appeal has no merit or it is being pursued for an improper purpose.

3. The trial court indicates the appellant lacks credibility.

If the lower court’s order or statement of decision indicates the appellant lacks credibility, I am always reluctant to pursue appeals when the trial court has made it clear the appellant is not to be believed. While it is true the court of appeal does not engage in credibility determination, to me it is a bad sign. If the appellate court is waffling on an issue, I believe it will come down in favor of the party who has more credibility or even sympathy. It is rare that I have won an appeal when the appellant has been branded a liar.

4. The client doesn’t have enough money to pay for an appeal.

Most appellate attorneys are not big risk-takers and will want to get paid up front for handling an appeal. The conventional wisdom is to ask for a retainer large enough to cover the hours required to get the appeal on the road and file the opening brief. If the client fails to pay any more money, at least the attorney has been paid up to this step and may seek to withdraw before the closing brief is due or oral argument is scheduled.

Some appellate attorneys will take cases on a contingency basis.  If I am considering a contingency fee basis, I would prefer to represent the respondent. The odds are in favor of affirming the judgment, so there is a good chance of winning and getting paid. Of course, the contingency fee is usually at least three times greater than that of payment up front, to compensate the attorney for the risk and deferred payment, so the appeal becomes more expensive to pursue. If you are representing the appellant, the odds are against reversal, so you’d better believe in your client’s chances on appeal.  

Some clients are better equipped financially to handle an appeal.  If your client is saving cash for a child’s education or is already living on the edge, then maybe they can put that money to a better use. I don’t want clients to bankrupt themselves or borrow money trying to pay for an appeal.

Sometimes the cost of obtaining the reporter’s transcript is enough to end an appeal. When clients are on the fence about an appeal and money is limited, I ask them to get estimates from the court reporter to help with the financial decision.

More to come ..

10 Good Reasons Not to Appeal

After a trial is over, you can count on at least one dissatisfied party. At times, there may be even more. The plaintiff may believe he or she was not awarded enough money. The defendant may believe the jury did not understand the defense. I have heard both parties proclaim, “I am not done yet, I am taking this all the way to the Supreme Court!”

Those unhappy litigants don’t understand the appellate process of the function of the appellate courts. Mistakes are often made during a trial. Some will have no significant impact on the results, while others might be prejudicial mistakes that changed the outcome of the trial. After the jury renders its verdict, each party and attorney will be busy dissecting the case to determine if an appeal should be brought.

As an appellate attorney, I welcome an appeal. That’s how I get paid. I don’t get paid to tell people not to appeal. That is one reason that potential clients believe me when I tell them an appeal is ill-advised. Why would I deprive myself of an income by giving out such silly advice? The truth is that for every case I take, I have to tell three other potential clients not to appeal.  

There are times when making an appeal doesn’t make sense. As I often tell my clients, there are two distinct aspects to an appeal. One aspect is to determine if there are meritorious grounds for the appeal.  If there aren’t, then ethical rules prohibit me from handling the case. The other aspect of an appeal is what I call the “financial” decision.  

Let me list ten reasons why I might advise a client not to appeal:

1. There are no meritorious grounds for an appeal.

Let’s say the plaintiff has obtained a judgment against the defendant. The defendant may be unhappy with the verdict, but there are no real judicial errors to challenge or prejudice to the defendant. The jury just didn’t buy the defendant’s version of events. The defendant may want to appeal just to gain some leverage in future negotiations or to delay payment.

Two problems: ethically I can’t file appeal on that basis. Nor can I file an appeal for the plaintiff simply to give him or her leverage to settle a case. The second problem is that pursuing an appeal for the wrong reasons – harassment, improper delay, bad faith, etc. – can open the door to sanctions against both the lawyer and the appellant.

Appellants and their attorneys may be subject to sanctions for pursuing an appeal that is “frivolous” or “taken solely for delay.”  (C.C.P. § 907; C.R.C. rule 8.276(a)(1).) While a client may be sanctioned for pursuing an appeal to harass the other party or delay the effect of the judgment, the attorney faces an additional ground: that the appeal has no merit, meaning any reasonable attorney would agree the appeal is totally and completely without merit. (Marriage of Flaherty (1982) 31 Cal.3d 637, 650.) I am not interested in risking my license to file an improper appeal. In addition, my retainer agreement provides that I can withdraw if I discover the appeal has no merit or it is being pursued for an improper purpose.

1. The appeal is based on lack of substantial evidence.

There are three major standards of review for appeals: legal error, abuse of discretion, and substantial evidence. An appeal could involve a combination of these standards.  

Beware of the appeal that is limited to substantial evidence. It is the hardest type of appeal to win. Appellants appealing on this ground face “a daunting burden.” (Whitely v. Philip Morris, Inc. (2004) 117 Cal.App.4th 635, 678.)

Appellants can recite all of the evidence in their favor, quickly dismissing or ignoring respondent’s evidence. I always point out that an appeal is not a retrial; the Court of Appeal is looking for judicial error.  The appellate court is bound by the trial court’s resolution of disputed factual issues and must affirm the judgment so long as the judgment is supported by “substantial evidence.” (Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 632.) The appellate court will not reweigh the evidence or re-examine disputed facts. It also does not concern itself with credibility determinations, leaving that to the superior court.  

The term “substantial” evidence is really a misnomer. The court is looking for some reasonable evidence. “Substantial evidence” must be “‘of ponderable legal significance . . . reasonable in nature, credible, and of solid value . . . ‘Obviously, the word cannot be deemed synonymous with ‘any evidence.’” (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 873.) In considering this type of appeal, the appellate court will look at the entire record, not just the facts that favor the appellant. More often than not, those facts are in the record.

(to be continued)

Balance in your life

 I recently spoke to some students at Western State University. These students were invited to participate in moot court competitions. I imagine they will have many hours of study ahead of them, but how exciting is that!  

These students are facing the beginning of their careers while I am slowing down. I miss that enthusiasm and excitement. Not that a great appeal doesn't excite me, especially if the appeal presents interesting issues, but it doesn't happen that often. I love appeals where I feel I can really make a difference, whether it is in shaping a body of law or helping my clients.

Some of the students were interested in a career in appellate law, so I could share my experiences with them. Others were more interested in how to prepare and present oral argument. I felt I could be useful there as well.

When I talk to young people now, I find myself talking more about their lives in general and not just being a lawyer. I tell them how deadly stress can be for all of us. I worry about the burden of student debt and how it might affect their career choices. I knew some of these students will drop out of law school, abuse drugs or alcohol, or face other tragedies. The possibility of these fates were hard to imagine when I looked at such innocent young people.  

I told them how important it was to have a strong support system in their lives. My boyfriend Tony claims he would have died long ago from his cancer without such a system. I know that when I go to court, I might face tough questions and feel under significant pressure, but if I know there is someone out there who is waiting for me to come home and doesn't give a hoot about my "courtroom performance," I feel a little stronger in facing judges or attorneys who might be more judgmental. (Fortunately, the Court of Appeal in Santa Ana is filled with friendly faces, although I still get stressed before oral argument.) 

That thought is the last thing on my mind before my case is called. I imagine coming home to my dog and man, and there is nothing but love in my household.  In turn, that love gives me the strength to battle opponents in the legal world.  

BMW Does it Again!

Last year I wrote about my problems with BMW, particularly the passenger-side airbag. I was concerned because I didn't see how I could invite people to join me in my 2005 330ic, knowing that it could cause death in any impact where the airbag ruptures. I had a problem structuring such an invitation while at the same time giving people fair warning that the airbag might make mincemeat out of them.

I agonized for months, but finally, finally, the problem was fixed. Or so I thought. Then I received notice several months ago that the driver's side air bag was defective. Why didn't I think of that? If Takata made both bags and one is defective, doesn't it sound reasonable the driver's air bag would also be defective? Sometimes you just want to hit yourself in the head.

But now I have more problems. Before I was concerned about driving around with my then 89-year-old mother. Now she is 90. If you think she has gotten easier to cart around, you are crazy. She hasn't survived this long by driving around in death-traps. So, I worry about that.  My boyfriend drives the BMW most of the time and he is a cancer survivor with 10 stents under his belt (or in his heart).  We have come so far in keeping him alive and now I have him driving a death-trap.  Fine woman I am!

So, I wrote BMW about my fears and anxieties over these problems.  I simply asked how long it would take to accomplish the repairs. I even contemplated buying a new car. They responded right away, asking for more information. OMG, was I in luck?

No, they wrote back "At this time, we are not able to provide you with a time-frame as to when parts may become available." Then Customer Relations wrote "We are truly sorry for any inconvenience should your vehicle be affected." Finally, it was signed "Sincerely" with a tiny smidgen of an ad for the BMW 2 series. So, let me guess, by writing they are "truly sorry," rather than just "sorry," I should realize that BMW really does care. And what about "sincerely" instead of "very truly yours." They really do care!  NOT!

As corporations get bigger and bigger, we may feel like we are small insects that they can't be concerned with. If you are dissatisfied with their treatment of you, where do you go? To another big corporation that will gladly take your money and ignore your complaints. Death by airbag may be a small risk, but it is a risk nonetheless. BMW should be doing more to take care of its customers. 

Can we talk about Bill Cosby?

From what I’ve read, at least 50 women have come forward to accuse Bill Cosby of rape. Thirty-five women agreed to be on the cover of New York magazine and share their stories. If you haven’t read this article, you can do so here:

I’m No Longer Afraid’: 35 Women Tell Their Stories About Being Assaulted by Bill Cosby, and the Culture That Wouldn’t Listen

Some have asked, “What about the presumption of innocence?” This presumption protects defendants in a criminal case. In the real world, most of us don’t enjoy a presumption of innocence. Just ask any kid who came home after curfew and is being interrogated by an angry parent. If Bill Cosby’s crimes are beyond the statute of limitations, barring any criminal prosecution, then is he entitled to be presumed innocent by the world forever?  I think not.

I don’t believe these women are asking that they be believed without question. They would probably like you to believe enough to entertain the possibility that Cosby is guilty and demand an investigation. After that, you can make your own decisions. 

When the first women came before the public, their stories were immediately discounted. After all, Bill Cosby was Cliff Huxtable, everyone’s favorite dad. As more and more women came forward, the doubts increased and could not be dismissed. What if he really did those things? I hope we can find out the truth. 

Read the New York article about how each woman has suffered and for some, they continue to suffer. Their behavior can’t be compared to having a few drinks to “loosen up.” Having sex with an unconscious woman who cannot consent is not the same thing at all. (It’s frightening to consider he might believe it is the same.)  

How could he engage in such acts without being caught? Was he assisted by others who kept their mouths shut? This story shows how powerful people can abuse the more vulnerable among us who dream of fame and fortune. That doesn’t make it okay for these women to be raped or assaulted. More importantly, why does it take 50 women against one man to get people to wake up and start doubting a beloved celebrity?