Good morning, Professor,

This is Alex Volkov, your student from a recent past (’10). I thought your
blog may be interested in a scoop I recently made of 100 California appellate
cases. I just wanted to see the breakdown, what field is litigated more than
another. I also did an earlier sample of 100 trial court level case (SF), so I
was also able to compare the results vertically.

Here are the posts:

http://ponfo.blogspot.com/2013/05/100-california-appellate-decisions.html

and

http://ponfo.blogspot.com/2013/04/100-cases-filed-in-san-francisco.html

Alex

The lawyers had represented a man seeking to remove the trustee of a trust. The trial court found that the lawyers had filed the petition “in bad faith and for an improper purpose.” The trustee then sued the lawyers for malicious prosecution of a civil action. The lawyers moved to dismiss the suit via an anti-SLAPP motion, which was denied. The lawyers then appealed, arguing that they had proved that they were likely to win at trial.

The Court of Appeal affirmed, in a published opinion that included the following choice bits:

Attorney Defendants misrepresented the record, ignored both clear authority and the trial court’s findings, and failed to provide a single cogent argument.
* * * *
The trial court in the trust litigation specifically found that the petition for breach of trust and removal was filed and pursued in bad faith and for an improper motive. Yet, nowhere in Attorney Defendants’ opening brief do they mention this finding. This is all the more preposterous because this finding of bad faith was appealed and affirmed by this court. Attorney Defendants only offer selective “facts” from the record that essentially ignore the findings in the trust litigation and ask this court to consider “evidence” that was explicitly rejected by the trial court. They offer no authority that permits this approach. They appear merely to pretend the results of the trust litigation were something they clearly were not. Attorney Defendants attempt to reargue factual issues that have long been decided (and affirmed on appeal) while ignoring the relevant statutes and case law. At times, it is clear that Attorney Defendants brazenly misrepresented the record and/or obscured facts.
* * * *
There is a great need to deter conduct of this nature in the future. This is especially true considering the number of attorneys involved in this appeal. Attorney Defendants consist of a law firm and three attorneys. They in turn were represented by two law firms and four attorneys. The sad fact that not one of the seven attorneys or three law firms involved in this appeal stopped this frivolous matter from proceeding is disappointing. We find it incredulous that seven pairs of legally trained eyes failed to see that the opening brief distorted the record and ignored the trial court’s findings to such an extent that it is appropriately characterized as nothing short of a farce. “It is critical to both the bench and the bar that we be able to rely on the honesty of counsel. The term ‘officer of the court,’ with all the assumptions of honor and integrity that append to it, must not be allowed to lose its significance.” (Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 292.) One of an attorney’s duties is to employ only those means that are consistent with truth and never to seek to mislead us “by an artifice or false statement of fact or law.” (Bus. & Prof.Code, §6068, subd. (d).) We cannot sit idly by when several members of the bar fail to live up to the standards of the profession.

The Court of Appeal concluded by ordering the lawyers to pay more than $60,000 in sanctions for proceeding with their frivolous appeal.

Perhaps if the lawyers had the case reviewed by one more “pair of legally trained eyes” – the eyes of an independent and experienced appellate lawyer – they might have saved this money and avoided a permanent, published blot on their professional reputations.

Follow the law, of course. CCP §632 requires, on request, “a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial.” But there are many ways you could satisfy this requirement. You could make it long or short, or formal or informal.

So think strategically. Ask yourself why you are doing this. You already won, and you will get a judgment in your favor no matter how you write the Statement of Decision. So why bother taking any care preparing it? Here’s why: if your opponent appeals, the Court of Appeal justices will look to the Statement of Decision to find out what facts the trial court found and what law led those findings to the judgment. The issue on appeal will be whether that Statement of Decision was erroneous.

So to protect yourself from reversal, put some time and thought into drafting the proposed Statement of Decision to have the best effect on the only audience that now matters: the appellate court.

First, make sure that the Statement is adequate to avoid reversal for a legally insufficient Statement of Decision – one that fails to (as CCP §632 puts it) explain “the factual and legal basis for its decision as to each of the principal controverted issues at trial.” The appellate court occasionally reverses where the Statement is too skimpy, wholly omitting discussion of a material issue. See 7 Witkin, California Procedure, Trial, §§401-402. Don’t make that mistake.

That part is pretty easy. The next part requires more strategic thinking. Use the Statement of Decision to make the trial judge your ally on appeal. In the appellate court, the appellant (your opponent) gets to go first. He writes the Appellant’s Opening Brief, which gives the Justices their first impression of the case. (You get to file only the second brief – the Respondent’s Brief – and then the appellant may file a Reply Brief.) But what if, after reading the first few pages of the Appellant’s Opening Brief, a Justice realizes that the record includes a Statement of Decision? The Justice might well put down the brief and go find the Statement of Decision. After all, whose view of the case would the Justice rather see first – an advocate slanting things to push his agenda, or a neutral colleague from another court?

So the Statement of Decision – signed by the trial judge, not by you – might be the most important “brief” of all. Therefore, write it like an opening brief – sort of. It should be shorter and less argumentative than a typical brief, but it should be clear and persuasive. This means it should begin by explaining – from scratch – what the case is about. You, your opponent, and trial judge don’t need this basic information, because you all have been immersed in this case for months or years, through pre-trial, trial, and post trial motions. But when the appellate justice begins work on the appeal, she knows nothing about the case. I do a lot of consulting on appeals, and I’ve seen way too many briefs and statements of decisions that assume that the reader knows what happened, or what the industry at issue is about, or what various technical terms mean. These leave the Justices scratching their heads and looking around for some document that tells them in plain English what the hell happened. You want that document to be one drafted by you, not by your opponent.

Look up the “standard of review” on appeal, and think of ways to frame the Statement of Decision to force your opponent to meet one of the more difficult standards of review. Issues of law are reviewed de novo, while issues of fact are reviewed under the “substantial evidence” rule – which is very deferential to the trial court and rarely results in reversal. So on disputed issues, have the trial judge make findings of fact rather than (or in addition to) rulings on contested legal issues.

And here’s my favorite: when I’m asked to help draft a Statement of Decision, I try to include a finding that our opponent’s client lied on the witness stand. I don’t say “lied”, I say “did not present credible testimony.” That pretty much demolishes any appellate argument based on the evidence – before any appellate brief is filed! And appellate justices don’t like perjurers. Of course, it’s up to the trial judge to decide whether to buy that finding, but quite often she will, because she knows we are trying to help her avoid the embarrassment of a reversal.

What about the loser? Rule of Court 3.1590(f) allows the losing party to file objections to the proposed Statement of Decision. Most losers take this opportunity to launch a full-scale attack on every part of the proposal. Big mistake. You seldom get very far by rearguing what you already argued at trial and lost. If the judge’s tentative decision finds that she believed the other guy’s evidence and not yours, it’s usually too late to talk her out if it. If her tentative rejects your legal reasoning and adopts your opponent’s, you have little chance of changing her mind now.

But elaborate objections can hurt you more than simply wasting time and paper. They can weaken your chance of winning the appeal! If you point out errors in fact, in law, or in reasoning, you are simply giving your opponent and the judge a chance to fix them in the final Statement of Decision – thereby depriving you of the chance to make these points in the appellate court! In fact, your duty to object is quite limited. Most cases hold that you waive nothing by failing to file any objections. Only a handful of reported cases found a waiver – where the loser failed to tell the trial court that the proposed statement of decision said nothing about a disputed material issue. See 7 Witkin, California Procedure, Trial, §404.

Back to the winner. When the loser does file elaborate objections, most attorneys instinctively want to fight every objection. Swallow that instinct. Instead, revise the proposed statement of decision to satisfy every objection you can without giving away the store. This will block the loser from making those same arguments on appeal.

Strategic thinking. That’s what wins cases – and appeals.

Sounds like a contradiction, but it’s not. I recently handled an appeal where this approach made all the difference.

Plaintiff Paul Ghysels owned a single-family home near several fraternities on the south side of the University of California’s Berkeley campus. In the past few years, the fraternities regularly hosted weekend parties that got out of hand, with underage drunks discharging noise, garbage, and other unmentionable projectiles onto Ghysels’ property.

His trial lawyer filed suit against about 50 fraternities, seeking damages for nuisance – for Ghysels individually and for a class of all homeowners in the south campus neighborhood. The complaint alleged that the fraternities caused the nuisance by serving beer to the kids. The trial court dismissed the complaint for two reasons: (1) a California statute immunized “social hosts” who serve booze to people who later cause injuries, and (2) a nuisance action involves too many individual determinations of damages to be suitable for a class action. I was brought in to help with the appeal.

I came up with a decent argument that the immunity statute didn’t bar the action, because although the complaint was full of allegations re alcohol, the guts of the complaint was the allegation that the fraternities allowed members and guests to throw stuff onto Ghysels’ property. The cause of the throwing (the fraternities serving beer) was irrelevant. I analogized this to a church whose sermons work the congregants into a frenzy in which they dumped stuff onto the property of church neighbors. A court could not, of course, penalize the sermons themselves (because of the First Amendment freedom of religion clause), but it could award nuisance damages for the dumping. I pushed that argument quite aggressively.

But a class action for nuisance damages? I could think of no way to defend that one. Each homeowner would suffer different “discomfort and annoyance” damages, depending on how far she lived from the offending fraternity. Same with the effect on the market value of the home. The trial court was right, and there was no reasonable argument I could make for reversal on that issue.

So I aggressively pushed the first point, and reasonably conceded the second point. It worked. The Court of Appeal reversed. See Ghysels v. Interfraternity Counsel (California Court of Appeal, First District, 2013) 2013 WL 179168.

Why was this approach important? Well, success often depends on the lawyer’s credibility. No matter how good an advocate you are, there are some arguments that no advocate can sell to a reasonable person. When I spot those lemons, I try to turn them into lemonade. Conceding a lemon can enhance my credibility, and that can help win the case.

It isn’t often that a judge sees a lawyer conceding something significant, and when she sees it, the judge might well give more credence to the lawyer’s arguments on non-conceded issues. When I find something to concede, I put the concession right up front in the brief – usually on the first page – and I do it graciously, without any grumbling. In this case, if I hadn’t conceded the second point, my credibility on the first point would have suffered badly and I might have lost it.

Aggressive reasonableness. Be bold when you are right, but modest when an argument just doesn’t sell.

A couple of weeks ago, the Court of Appeal really hammered him – in a published opinion.  In re Kinney (12/8/11) ___ Cal.App.4^th ___, 2011 WL 6091839.

The Court affirmed on the merits – and then held that Kinney was using the co-owner as a proxy for himself.  The Court recounted in detail Kinney’s long list of failed litigation – representing both himself and his clients.  The Court concluded: “This opinion will serve as a prefiling order prohibiting Kinney from filing any new litigation — either in his own name or in the name of [his proxy] — in the courts of this state without first obtaining leave of the presiding judge. Disobedience of this order will be punished as a contempt of court.”  The Court sent a copy of its opinion to the State Bar.

By coincidence, my wife – Diana Sam – just won a case against Kinney.  Kinney represented an Oakland homeowner, suing a neighbor for harassment resulting in alleged damages (including reduction in the value of the property and emotional distress) of over $2 million.  After the defendant was served, she wrote a letter of apology to the plaintiff – admitting all the allegations (including one that said she had put dog feces on plaintiff’s front door)!  Only then did she retain Diana.  After that letter, not much chance of contesting liability.  But at trial, Diana held the damage award down to only $6,000.

This is not like other writing courses. It’s about substance – not form. It will change your way of thinking about how to convince judges – and to get your creative juices flowing. It’s about how to win.

The State Bar has approved this program for three CLE credits.

Tuition: $175 ($50 discount for government lawyers, legal services lawyers, attorneys who primarily handle indigent criminal appeals, and attorneys who have been a member of the Bar for less than 3 years.)

Start Time: 05:30
Date: 2012-01-25
End Time: 09:15

We're sorry, but the registration for this seminar has been closed. Try registering for one of our other seminars coming up in the near future.

The State Bar has approved this program for three credits of specialization in appellate practice. Lawyers not seeking specialization credits will receive three regular CLE credits.

This program is not like other appeals programs. It’s about strategy, not form. We won’t spend time going through the rules and the usual ways of doing things. Instead, we’ll focus on one question: what works to win?

Tuition: $175 ($50 discount for government lawyers, legal services lawyers, attorneys who primarily handle indigent criminal appeals, and attorneys who have been a member of the Bar for less than 3 years.)

Start Time: 5:30 p.m.
Date: Monday, January 23, 2012
End Time: 9:15 p.m.

We're sorry, but the registration for this seminar has been closed. Try registering for one of our other seminars coming up in the near future.

In Kim v. Westmore Partners, Inc. (2011) ___ Cal.App.4^th ___, 2011 WL 5925228, respondent’s lawyer asked the Court of Appeal (4^th District) for extension of time to file his brief:

“In that request for extension, Donahue explained—under penalty of perjury—that additional time was required to file the brief because of the many “complex issues raised” by appellants and his “[n]eed [for] more time to research cases & finalize brief….” He also cited “other time commitments of counsel.” The extension was granted.  However, when Donahue filed his brief, it belied his claim that he had been engaged in any significant research in connection with this appeal, as well as his claim of needing any significant time to “finalize” his brief. In fact, Donahue’s brief proved to be an almost verbatim duplicate of another brief he filed with this court in September of 2009, in the case of Nguyen v. Castillo (G041494).”

In a published opinion, the Court really lit into the lawyer:

“Those who practice before this court are expected to comport themselves honestly, ethically, professionally and with courtesy toward opposing counsel. The fact a respondent has no obligation to file a brief at all, in no way excuses his counsel’s misconduct if he chooses to do so. The conduct of Timothy J. Donahue, Kim’s counsel herein, which included seeking an extension of time to file his brief under false pretenses, and then filing a brief which was not just boilerplate, but a virtual copy of a brief for another case—including a boilerplate accusation of misconduct against appellants’ counsel and a boilerplate request for sanctions based on a purportedly “frivolous” appeal—will not be countenanced.  Donahue’s response to this court’s notice, informing him that we were contemplating the imposition of sanctions on our own motion, was both truculent and dismissive, going so far as to assert that we must have issued the notice in error. We did not. Nor did we appreciate him responding to our order that he appear to address possible sanctions against him by sending in his stead an attorney who had not been informed sanctions were being considered, and knew nothing about our order. Donahue’s conduct on appeal was inappropriate in nearly every respect, and we hereby sanction him in the amount of $10,000.  * * * *

Our profession is rife with cynicism, awash in incivility. Lawyers and judges of our generation spend a great deal of time lamenting the loss of a golden age when lawyers treated each other with respect and courtesy. It’s time to stop talking about the problem and act on it. For decades, our profession has given lip service to civility. All we have gotten from it is tired lips. We have reluctantly concluded lips cannot do the job; teeth are required. In this case, those teeth will take the form of sanctions.

We do not come to this conclusion lightly. Judges are lawyers, too. And while we have taken on a different role in the system, we have not lost sight of how difficult it is to practice law. Indeed, at the appellate level, we are reminded daily how complex and recondite the issues that confront practitioners daily can be.

So we are loath to act in any way that would seem to encourage courts to impose sanctions for mistakes or missteps. But for serious and significant departures from the standard of practice, for departures such as dishonesty and bullying, such steps are necessary. We will step onto the slippery slope and trust our colleagues on the trial court bench to tread carefully along with us. It is time to make it clear that there is a price to pay for cynical practices.

If this be quixotic, so be it. Rocinante is saddled up and we are prepared to tilt at this windmill for as long as it takes.  * * * *

The court having found that Timothy J. Donahue, State Bar No. 110501, has violated court rules in such a degree as to require sanctions in the amount of $10,000, the clerk of this court is ordered, pursuant to Business and Professions Code section 6086.7, subdivision (a)(3), to forward a copy of this opinion to the State Bar upon return of the remittitur, and to notify Mr. Donahue that the matter has been referred to the State Bar.”

MM: I would add another concern: Mr. Donahue disrespected the Justices themselves.  Appellate judges take their work very seriously.  They realize that they are usually the final stop on the road to justice.  There aren’t many rules restricting how an appellate lawyer must behave, but the rules that exist are very important.  They ensure that the Court gets the facts right (through a proper record) and gets the law right (through proper citations of relevant authority).  The Justices need both if they are to come to the correct result for the parties and – in a published opinion – sets precedent for the rest of society.  A lawyer who ignores these goals assaults the Justices where it really hurts.

In People v. Bell (2011), 197 CA4th 822, 128 CR3d 588, Bell leased an apartment under the name of another person whose identity Bell was using without permission, then made only partial rent payments.  The court upheld Bell’s conviction for grand theft:

“We conclude that the grand theft conviction is supported by substantial evidence because Bell intended to permanently deprive Healstone of a leasehold interest in real property, at least to the extent that Bell failed to pay rent during her occupancy. Bell took possession of the apartment by false pretenses and was delinquent in rent payments “right off the bat.” She made partial payments, late payments, and a payment with a bad check. The jury could reasonably have concluded that she intended to deprive the owner of months of rent when she moved into the apartment under false pretenses. Using another’s identity not only permitted her to lease the apartment, but also to have that person’s bank account garnished instead of Bell’s. And because nothing in the record suggests that she intended to pay all the rent at a later time, it is evident that she intended to permanently deprive Healstone of its leasehold interest, at least to the extent of the unpaid rent.”

In Gould v. Corinthian Colleges, Inc. (2011) 192 CA4th 1176, 120 CR3d 943, a commercial lease contained an “anti-waiver” provision, which said that the landlord’s acceptance of less than the full amount of rent shall not be a waiver of his right to the remainder of the rent.  The parties agreed that the tenant could terminate early by paying $136,500.  The tenant paid $120,000, telling the landlord to take the balance from the tenant’s security deposit.  The landlord kept the $120,000, then claimed that the tenant’s effort to terminate early was ineffective, because the tenant had no right to require the landlord to use the security deposit, and the anti-waiver provision gave the landlord the right to keep the $120,000 and still be owed the remaining $16,500.  The court held that by failing to return the $120,000, the landlord had waived the anti-waiver provision, and therefore rejected the landlord’s assertion that the early termination was ineffective.  “For Gould to keep the money and claim it does not constitute waiver is absurd, not to mention unconscionable.”