Justices report on common problems in appeals

May 5th, 2011 , 2:46 pm

I recently attended a conference, On Federal and State Appeals, sponsored by the State Bar’s Litigation Section and the Committee on Appellate Courts.   The panels were asked about common problems in appeals. Since these problems also involve trial work at the superior court level, I thought I would pass them on:

• Make sure the separate statement includes all relevant facts and complete citations to the evidence.  Sometimes attorneys will refer to “facts” in their separate statement, including citations to the evidence, but the memorandum of points and authorities and supporting declarations will include facts – some of them quite favorable – that are nowhere to be found in the separate statement.  As Judge Norma Manella explained, “Justices are not pigs hunting for truffles in your briefs.”
• In summary judgments, the attorneys submit expert declarations that are conclusory, lack authentication, and fail to include the evidence to which the declarant is referring.
• Be specific with your offer of proof.  It should not rely on conclusory statements or ultimate facts; provide the court with evidentiary facts concerning the proposed testimony or evidence.
• If you have made an objection to evidence at trial but it comes in anyway, such as when you object and a long discussion follows, don’t forget to make a motion to strike.
• If you have a blow-up diagram or even a Power Point presentation, be sure to prepare an 8×11 hard copy of them so that they can be included in transcripts and easily submitted to the appellate courts.

The justices also noted that they are seeing more cases of juror misconduct, which is understandable given all of the resources now available to jurors to conduct even basic research.  One justice noted that in the past a juror might visit the scene of an accident; however, in order to conduct research, the juror would have to make an effort to go to the library.  Now, it’s just too easy and tempting with all of the resources at hand.  Jurors can research facts and the law, and even seek outside opinions.  Jurors should be reminded by the court that they are not to do such research, especially if they hear testimony that mentions a web site or blog.  In a similar vein, attorneys should remind their clients not to post blogs, pictures, etc. while a case is pending.  I have heard a few bad stories.  In fact, it seems that opposing counsel is conducting more research on our clients than we are!  Do you google your new clients?  Not a bad place to start to learn about your clients.  I have to admit that I have turned down a few clients on the basis of what that preliminary research has revealed.