Appellate Advocacy Seminar in Florida

January 20th, 2008

Here is the chance for you to travel to the sunshine state and brush up on you appellate advocacy skills (while the rest of the family hangs out at that Magic Kingdom place).  DRI (the defense side of the civil trial bar) is putting on a two-day appellate advocacy seminar.  More info on the DRI site and on The (New) Legal Writer Blog.

Unfortunately, Florida travel is not in my plans at the moment – but if you attend the seminar, drop me a note and let me know what you think.  I occasionally teach CLE sessions on appellate advocacy and am always interested in hearing about what works and what does not work in the seminar setting.

Paint a Picture with Your Words … But Not that Picture

January 16th, 2008

At the end of the day, litigators (trial and appellate) are in the communications business.  We must get a point across to our audience and win them over to our point of view.  Writing instructors say to “tell a story” or to “paint a picture with your words.”  But, please be careful with the picture you paint!

Reuters has a story on the Business of Blogging:  How to Make it Work, in which it quotes a “branding expert” as noting that a successful blog “kind of opens the kimono and from a brand point of view lets people know who you are.”  That certainly conjures up a picture — but not one I particularly want to see! 

Thanks to Eugene Volokh over at Volokh Conspiracy for the pointer, and special thanks for him also promisng to keep his kimono closed.

Arguing the “Political” Case

January 10th, 2008

It is fashionable to accuse courts of rendering decisions based on political preferences.  Whether or not this is true, appellate counsel need to be aware that the courts are sensitive to the accusation. 

SCOTUSblog has a post on this week’s argument before the United States Supreme Court on the Indiana photo-identification law entitled “The Partisan Elephant Unnoticed in the Room,” that highlights this concern.  The media will paint the decision in partisan overtones.  The court, therefore, needs the assistance of counsel for all parties to highlight the strictly legal (and constitutional policy) issues in the case to avoid feeding the partisan story line.

Section 1988 Fees Need Not Be Proportional to Damages

January 9th, 2008

Litigating cases against government entities can be frustrating.  In some cases, it seems that a city or state agency will spare no expense in litigation to defend against a claim with the result that the cost of litigation will greatly exceed the damages awarded.  Successful civil rights claimants are entitled to attorney fees under 42 USC §1988, but the question is whether the attorney can get fairly compensated the time it took to litigate the claim.

The First District Court of Appeal recently issued a decision that will help litigants with this concern.  In Harman v. City and County of San Francisco, the city argued that a fee award of $1.1 million should be overturned since it was grossly disproportionate to the $30,000 in damages awarded by the jury.  The court ruled, however, that proportionality was not the legal standard against which to judge fee awards under section 1988. 

Instead or proportionality, the court bases a fee award under section 1988 on a lodestar calculation that includes time reasonably spent in pursuit of successful claims.  Time spent on tasks attributable to multiple claims need not be apportioned to account for success on only some of those claims — the standard is reasonableness of the time spent.

Similarly, a successful claimant may be awarded fees for unsuccessful claims where they are related to successful claims and the court finds a reasonable relationship between significance of the relief awarded and the hours expended on the litigation.  The amount of the damage award does not control this question:  “a slight monetary recovery will not control assessment of the appropriate amount of attorney fees where a constitutional right is vindicated or a significant public benefit conferred.”

One of the important lessons of this case is the difficulty in challenging an award of fees on appeal.  The standard of review is “abuse of discretion.”  Thus, although the Court of Appeal noted that had the question “been presented to us in the first instance, we may not have awarded attorney fees that so far exceed the recovery of damages,” the award by the trial court was not an abuse of discretion.  The appellate court took note of the fact that the trial judge that made this award “presided over the entire lengthy proceedings, including two remands,” and “handled this case for several years.”  In that situation, the appellate courts will be especially hesitant to disturb the trial court’s attorney fee award.

Congratulations to my former colleagues, Paul Beard and Sharon Browne at Pacific Legal Foundation, and my law school classmate, Andrea Miller of Nageley, Meredith, & Miller, for this outstanding victory.

Court OK’s 1021.5 Fees for Pre-Litigation Activities

January 8th, 2008

Unlike fees awarded under 42 USC §1988 for civil rights claims, the private attorney general attorney fees provision in California (Code of Civil Procedure §1021.5) permits an award of fees if the subject litigation was the “catalyst” for the government’s change of position even where the litigation did not result in a successful judgment or court order.  In order to win fees under the catalyst theory, however, the California Supreme Court has said that you must attempt to settle the dispute before filing the law suit.  (Graham v. DaimlerChrysler Corp., 34 Cal. 4th 533, 560 (2004)). 

The question addressed by the Court of Appeal in Hogar v. Community Development Commission is whether you are entitled to fees for those pre-litigation activities.  The court ruled that fees for pre-complaint activities were not precluded under section 1021.5, but that a litigant seeking such fees will “bear a heavier burden of demonstrating how that activity contributed to the success of the litigation.”

The lesson for counsel involved in these actions is to keep accurate records of their time from the first contact with the government agency — even if you are unsure at that point that your client will pursue litigation if those initial contacts are unsuccessful.

New Year’s Resolution for Appellate Counsel?

January 2nd, 2008

The ABA Journal quotes Justice Kennedy saying “I’ve never read a brief I couldn’t put down in the middle.  It is not the best part of the job.” (Thanks for the pointers from The California Blog of Appeal and Legal Writing Prof Blog).  Assuming the comment was directed to the quality of writing rather than attention span — this is a pretty damning indictment of appellate practitioners.

This started me thinking about what makes a good appellate lawyer.  Writing, I fear, is the last thought that comes to mind for many attorneys.  It should be the first, however. 

Think about the great trial practitioners.  What sets them apart is their ability to tell a story to the jury, using witnesses and their own argument.  The appellate lawyer, by contrast, ought to be known for his or her writing.  Communication is still the key, we just use a different medium.

In my old job I spent quite a bit of time hiring, training, and evaluating attorneys for a firm that worked primarily in the appellate forum.  I told the new attorneys that the position required a career-long commitment on their part to improve their writing.  If that is something you enjoy, then appellate practice is the right place for you.

This New Years, I am resolving to take some of my own advice and work on my writing.  That does not mean that you can ignore the other elements of appellate practice.  You need to understand what you can accomplish in the appellate forum and the standard of review the court will apply.  You also need to bring you superior legal analytical abilities to bear.

That said, however, if the court does not read your brief all of that other effort is wasted.

No damage award for violations of Right to Privacy

December 10th, 2007

The California Constitution includes a right to privacy that protects against both government and private snooping.  Prior cases have noted that individuals can win injunctive relief to enforce this right and prevent snooping in the future.  What relief is available, however, if all of the spy work has been completed?  According to the Court of Appeal in Richardson-Tunnell v. School Insurance Program for Employees, there is no claim for damages against the government.

Richardson-Tunnell was a school employee and suffered a back injury which required disc replacement surgery.  The school district wanted to know just how injured she was, so it hired Eye-Con Investigators to crash her wedding and video tape the ceremony and the reception and, for good measure, to use telephoto lenses to snap pictures of her and her husband sun-bathing while on their honeymoon.  Richardson-Tunnell sued for damages, claiming a violation of her constitutional right to privacy.

The Court of Appeal upheld the trial court’s dismissal of the action.  Public employees are immune, pursuant to Government Code §821.6, for liability resulting from investigations that could lead to administrative proceedings.  Even though the school district failed to raise this claim in its answer, this immunity is jurisdictional and cannot be waived.

Because of the statutory immunity, the court did not reach the question of whether the California constitutional right to privacy provides a cause of action for damages.  For now, the only available relief is to prevent future spying with an injunction.

Burned by the (lack of a) record

December 7th, 2007

Judge Kleinfeld let the Department of Justice know that he was on their side — if only they could have supported their case with a record and appropriate references in their brief.  The judge’s note appeared in his concurring opinion in Sierra Club v. Bosworth.  In that case, the 9th Circuit struck down the Forest Service’s categorical NEPA exemption for fuel reduction and prescribed burn projects in the National Forests.

Given the recent fires in Southern California and Lake Tahoe area, the subject of forest fire prevention is likely to excite spirited debate.  For his part, Judge Kleinfeld noted:

“I cannot bring myself to believe that a Forest Service decision to cut brush and use controlled burns to reduce forest fire danger near urban areas is arbitrary and capricious.  And I cannot quite bring myself to believe that the categorical exclusion in this case, covering less then one half of one percent of federal land, will have a cumulative impact on our environment requiring years more research, analysis and report writing before we do anything to protect people from forest fires. …

Nevertheless, the government’s brief does not point us to anything in the record that supports my intuitive view. … The briefs and the record control, and the government has made no serious attempt to show us why the categorical exclusion was not arbitrary and capricious …  A judge’s duty is to decide the case based on the law and the record, not his personal policy preference.  I am therefore compelled to concur.”

Whether at the administrative hearing or the trial level, counsel should always anticipate the appeal and make sure that there will be an adequate record to support the appellate arguments.  As Judge Kleinfeld points out, once you are in the appellate court “the briefs and the record control.”

Arguing the facts? If so, you had better cite the record!

December 5th, 2007

Appellate counsel know that the most difficult argument to make on appeal is that the jury’s verdict is not supported by the substantial evidence.  Yet, if you are going to attempt to make that argument you must include adequate citations to the record in your brief.  Indeed, you are tasked with the duty to summarize the evidence — all the evidence — on the point being argued with appropriate citations to the record.  Failure to do so will inevitably lead to an appellate court ruling that you have failed to carry your “daunting burden.”

These points were noted in a published opinion from the 6th DCA this week in Schimidlin v. City of Palo Alto.  There, the court chastized the appellant for failing to comply with this rule of appellate practice.  The court noted: 

“Defendants assert that the evidence was insufficient to support the jury’s finding of excessive force.  At least we so construe their brief, which alludes in passing to the insufficiency of the evidence, but which is actually devoted almost entirely to rearguing the facts.  This approach disregards the fundamental principles governing appellate review of factual findings.”

Ouch!  This is not the sort of thing you want to be reading about your brief in a published opinion.  Nonetheless, as Greg May points out over at California Blog of Appeal, this is an all too common error in appellate presentations.

I should point out that, at least in theory, it is not impossible to prevail on appeal by arguing that the verdict is not supported by substantial evidence.  But even a vanishingly small chance of success will disappear altogether if you do not give the appellate court the tools it needs to rule in your favor.  That includes a fair presentation of the facts, both for and against your client, with appropriate citation to the record.

Standard of Review in the California Supreme Court?

December 4th, 2007

Appellate practitioners are familiar with the need to identify a standard of review for the court of appeal’s review of a trial court decision — but what standard does the Supreme Court apply when it reviews the court of appeal decision?

Before 1984, this was not an issue since at that time the Supreme Court reviewed the trial court ruling, and the intermediate appellate ruling simply disappeared.  In 1984, however, the state constitution was amended to note that the Supreme Court reviews the decision of the court of appeal.

This week, the California Supreme Court in City of Stockton v. Superior Court stated (apparently for only the second time) that its review of the appellate decision is an independent judgement review.  The court cited its earlier decision in Smiley v. Citibank, 11 Cal. 4th 138 for this proposition which in turn had noted that the court was duty bound not to defer to the court of appeal ruling.

Although the rules of review changed in 1984, California still does not publish the court of appeal decision once review is granted.  California Rule of Court 8.1105 provides for automatic depublication once review is granted — it is then up to the Supreme Court to specially order partial publication.  This becomes important since the Supreme Court does not review the entire court of appeal decision.  Instead, the court only reviews specific issues presented for review.

 Appellate counsel should keep this point in mind when advising clients (especially those who are not party to the appeal) whether to ask the court to publish a portion of an appellate ruling on which review has been granted.  Without that partial publication order, no part of the appellate ruling may be cited as precedent — including that part on which the Supreme Court did not grant review.