The Failure to File Proper Appellate Briefs Can End in Disaster for Your Appeal

On July 27, 2017, the Third District Court of Appeal published a decision in Ewaid v. Nationstar Mortgage, LLC  In that case, the court never reached the merits of the appeal because of the manner in which the appellate briefs were prepared. Appellant’s counsel did not state the applicable standard of review, did not cite or discuss relevant legal authority and did not file a reply brief. The result, the judgment against the appellant was affirmed and the appeal was a complete waste of time.

This  decision provides an extreme example of how arguments can be lost due to the manner of presentation. Even experienced trial lawyers who do not regularly handle appeals can miss some of the nuances of appellate law practice and can get in the way of a Court of Appeal understanding and ruling on the merits of arguments.

Jeff Lewis is an experienced appellate attorney who can advise you about the specifics of your appeal.  Each case is different and you should consult a lawyer rather than relying on this post as legal advice for your situation.  If you are contemplating filing or responding to an appeal in your matter, consider retaining a certified appellate specialist  as your lawyer or co-counsel on appeal.  Don’t wing it, win it.


Summary of June 2017 Writ Workshop by LACBA Appellate Section

Earlier this week, I attended a fantastic panel by the LACBA Appellate Section on avoiding fatal mistakes in writs. The presentation was made by two writs attorneys of the Second District Court of Appeal. Many of the points were already known to me while some were knew. Below were the most important or interesting points I noted:

  1. If a writ provides a set time (for statutory writs) or is governed by a 60 day deadline (for common law writs) do not wait until the last day to file your writ. In addition to the obvious risks of having a filing problem, waiting until the last day will often undercut the claim of exigency. File the writ at the earliest opportunity.
  2. Trial counsel should be advised not to “waive notice” following a hearing. Doing so deprives appellate counsel of time to work on the writ.
  3. The fact that a petition is supported by a declaration in lieu of a reporter’s transcript will not lessen the chances of the writ being granted. When a reporter’s transcript has been ordered but is not yet ready, the declaration should specify when it was ordered, from who and the expected completion date. When there was no court reporter present, a declaration can suffice but must fairly and completely describe the hearing.
  4. There are differences in the judicial philosophies among districts, divisions and justices.  Each has different views regarding calling the clerk, including illustrations in briefs and whether to file an uninvited opposition to a writ.

The Perils of In-House Counsel Simultaneously Representing Company and Employee

In Yanez v. Plummer (Nov. 5, 2013, C07026), the Third Appellate District issued an opinion highlighting the perils for an in-house lawyer who simultaneously represents the company and an employee.  Union Pacific fired Michael Yanez for dishonesty, citing a discrepancy between a statement that Yanez wrote and a deposition answer Yanez gave in a lawsuit concerning a co-employee’s on the job injury.  At that deposition, Union Pacific in-house counsel, Brian Plummer, represented both Union Pacific and Yanez.  Yanez met with Plummer prior to the deposition.  During this preparation session, Yanez told Plummer he was worried about how his testimony might hurt Union Pacific and may affect Yanez’ job.  Yanez asked Plummer who would protect Yanez at deposition.  Plummer indicated that he would be Yanez’ attorney at deposition.  Yanez’ conflicting deposition testimony led to Yanez’ termination by Union Pacific.  In the ensuing lawsuit, Yanez alleged malpractice, fraud and breach of fiduciary duty against Plummer.  Plummer successfully argued on a motion for summary judgment that Yanez could not establish the causation element of the claims against Plummer.

Continue reading “The Perils of In-House Counsel Simultaneously Representing Company and Employee”

Judge’s order to take down law firm webpages is unlawful prior restraint

First Amendment

A lawyer’s website contained pages describing past successful litigation against Ford.  When that lawyer was in trial on a similar claim against Ford, the trial judge ordered the lawyer to remove the website pages during the pendency of the trial so that jurors were not exposed to it.  On appeal, two years after the trial was over and the website was restored, the order was found to be an unlawful prior restraint.  On Wednesday,  Division Six of the Second District Court of Appeal issued the opinion by Justice Steven Z. Perren in Steiner v. Superior Court (Cal. Ct. App., Oct. 30, 2013, 2D CIV. B235347) 2013 WL 5819545.  The decision was significant in three respects:

First, it recognized an important limitation on the trial court’s power to curtail an attorney’s free speech rights.  The trial court had correctly instructed the jurors not to “Google” the attorneys or conduct independent research.  Jurors are presumed to follow such admonitions.  (Steiner v. Superior Court, at 14; citing NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1221).  Absent proof that any juror actually violated the court’s admonition, the trial court had no authority to order the trial attorney to take down web pages as a prophylactic measure.

Second, it was a rare example of a Court of Appeal issuing an order “after the fact” when the issue had already become moot.  The trial ended in October 2011 and the attorney restored her webpages.  The opinion in Steiner did not issue until two years later.  Generally, California Courts of Appeal do not issue opinions where the issues are moot and the court has no power to grant any meaningful relief.  However, here, the Court of Appeal found that orders such as these raise issues of “broad public interest” that are likely in the future to “evade timely review.”  (Steiner, at 5; citing Nebraska Press Assn. v. Stuart (1976) 427 U.S. 539, 546-547).  On this basis, the Court issued the opinion and overruled the objection of mootness.

Third, it is a cautionary tale for appellate counsel not to mislead justices.  One of the appellate petitions overstated the breadth of the trial court’s order stating that the entire website of the lawyer had been ordered removed pending trial (as opposed to just two pages that were actually ordered removed).  In the Steiner opinion, the Court of Appeal observed regarding appellate counsel Sharon J. Arkin:

It appears she is in violation of Business and Professions Code section 6068, subdivision (d), which states that it is the duty of an attorney “[t]o employ, for the purpose of maintaining the causes confided to him or her those means only as are consistent with truth, and never to seek to mislead the judge or any judicial officer by an artifice or false statement of fact or law.

(Steiner, at 4 fn. 3)

Appellate attorneys who stretch the truth in their briefs risk not only prejudicing their client’s interests but also receiving a sometimes publicized rebuke.  Even though this particular attorney was victorious on appeal for her client, the footnote in a published decision is a steep price to pay for zealous advocacy.  A Los Angeles legal affairs newspaper was unable to reach Sharon Arkin for comment.

Malpractice Claim Against DLA Piper Reversed

In Wise v. DLA Piper LLP (D062150, D062661 Oct. 8, 2013), the Fourth Appellate District, Division One reversed a malpractice judgment following a jury verdict against the law firm DLA Piper LLP.  Justice Alex C. McDonald wrote the court’s opinion.

DLA Piper’s predecessor in interest represented Dennis and Joan Wise in obtaining a judgment against William Cheng in 1994.  DLA Piper did not advise the Wises of the need to renew the judgment every ten years to avoid expiration.  The judgment expired in 2004 and the Wises sued DLA Piper for legal malpractice.   In the ensuing trial and again on appeal the critical issue was the collectibility of the judgment.  DLA Piper argued that if Chen was insolvent, legal malpractice could not be established.  The Wises retained a collections attorney to testify as an expert witness on collectibility.  The expert testified that Cheng could have satisfied a judgment.

Although the facts of the case were unremarkable.  The decision is notable for three reasons.

First, it reaffirms that in proving a malpractice case premised on the mishandling of a client’s claim, the plaintiff must prove that proper handling of the claim would have actually resulted in a collection against the debtor.  Put differently, if the Continue reading “Malpractice Claim Against DLA Piper Reversed”

3 Reasons a Trial Lawyer Should Retain an Appellate Specialist as Co-Counsel

English: The courthouse of Division Six of the...
(Photo credit: Wikipedia)

This post is the second in an ongoing series about maximizing a party’s chances of prevailing on appeal.  The trial is over, the verdict is in and the loser wants to appeal.  Should the same lawyers who handled the trial also handle the appeal themselves or retain an appellate specialist as co-counsel?  Consider the following benefits to retaining an appellate specialist:

1.  For appellants, the trial lawyer’s arguments obviously were not persuasive at the trial level.  Simply repeating the same arguments on appeal is not likely to succeed.  Moreover, following the intense experience of going through trial, a second opinion may be warranted.  As observed by Justice Kenneth R. Yegan in Estate of Kilkison (1998) 65 Cal.App.4th 1443:

[T]rial attorneys who prosecute their own appeals…may have ‘tunnel vision.’ Having tried the case themselves, they become convinced of the merits of their cause. They may lose objectivity and would be well served by consulting and taking the advice of disinterested members of the bar, schooled in appellate practice.

Continue reading “3 Reasons a Trial Lawyer Should Retain an Appellate Specialist as Co-Counsel”