My baby has arrived! An Appeal to Reason is finally here!

After what seems like months, if not years, my book has finally arrived.  It looks beautiful.  Although I have never delivered a child, I am sure this is the next best thing.  Oh yeah, no late nights, no lack of sleep, and no crying (except for me).  Maybe it is the BEST thing.

This book is all me, with some help from various people, but from the beginning concept to the end product, this book has been a vision of mine for years.  (Okay, so every nonfiction author dreams of writing a novel, but that may be the next item on my agenda.)  The primary reason I wrote the darned thing was to help trial lawyers avoid mistakes at the superior court level that will hurt their chances on appeal.  For over 30 years, I have seen the same type of mistakes over and over again.  I have talked about them, lectured on them, written about them, but now, I have collected most of my wisdom - yes, even I have secrets - so that trial lawyers will benefit.

Someone recently asked me, "Let me get this straight, you are writing a book with advice, that if followed, will essentially put you out of work?"  Well, I didn't think of that way, and prefer not to, but I guess there is something to be said about that line of thinking.  No, I don't think that the appellate courts will close their doors if everyone follows my advice.  There still will be work for appellate attorneys.  But truthfully, if I am going to handle an appeal, I would want to be in the best position to win.  So, that is my hope for you trial attorneys after you have read the book. 

Appeals are about real people

Going through recent appellate decisions is something that I do on a daily basis.  Sometimes I am looking to see if a decision might have some application to an issue I am working on.  Other times I am looking for tips and warnings that I can pass on to others so they might avoid pitfalls in pursuing an appeal.  Once in a while I might stumble on a case that is interesting for other reasons. 

When I first started reading Kincaid v. Kincaid, 2011 Cal.App. LEXIS 800, I have to admit I was stunned.  The facts were enough to sadden me.  The appellant is the mother of a young woman, Shannon, who committed suicide by jumping off the roof of her mother's apartment complex.  Shannon was 11 years old when the appellant married Jeffrey Kincaid.  The appellant alleged that shortly after their marriage, respondent began torturing, molesting and raping the young girl.  The opinion described some of these acts, and noted that respondent threatened Shannon if she told anyone about his actions.  As a result, Shannon developed severe emotional problems and became dependent on alcohol and drugs.  After she received psychiatric help, a report was made to law enforcement.  Ultimately, the prosecution did not go forward with a criminal case due to insufficient evidence.  Several years later, Shannon committed suicide.

Mrs. Kincaid filed a wrongful death action, alleging that respondent's behavior was a substantial factor in causing her daughter's suicide.   The trial court granted respondent's motion for summary judgment, but the appellate court reversed the judgment, finding the trial court erred in refusing to admit a transcript of a recorded telephone conversation between the parties in which appellant confronted respondent.  This conversation, had it been admitted, would have created a triable issue as to whether the acts occurred.

This case stayed with me well after I finished reading the opinion.  I am not reporting on the law of the case.  The point that I wanted to make is that while appeals may deal with "judicial error" at the lower court level, the cases are still about people.  Yes, we can make them about the law, but we are missing an important ingredient if we overlook the story behind the appeal.  When dealing with clients, an attorney must be mindful of the story, because the appellant's motivation in pursuing a wrongful death action for the loss of her daughter may mean more to her than just obtaining an award of damages.  And respondent's fight to avoid a finding of liability may also mean more to him than just paying damages.  Motivation is also an important consideration.  But when you are presenting a client's story to the appellate court, remember that you are dealing with real people and try to write your briefs in a way that brings that story alive.  No matter how painful that might be.