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."