Legal News and Appellate Tips

You trial attorneys have a job to do. That job is to win the trial. And you can’t always do that and win the appeal at the same time. So you can’t pick a fight on every point. But, you had better fight the ones that turn the case.

And, you had better make a record on it.

On this episode of the California Appellate Law Podcast, reprising Tim’s recent CLE presentation, we cover 10 tips that appellate attorneys want every trial attorney to know:

💡 The rule that contains all appellate rules: Make the Record.

👉#1 Make sure your theories of the case are captured in your pleadings

👉#2 Was key evidence excluded? Preserve the issue by making a proffer.

👉#3 Keep objecting to evidence if the judge “defers” ruling on your MIL.

👉#4 Object to Jury Instructions

👉#5 Review the Verdict for Inconsistences

👉#6 Request and Object to the Statement of Decision

👉#7 File a motion for new trial to preserve challenges to the damages amount …and Watch out for JNOVs!

👉#8 Calculate Appellate Deadlines Correctly

👉#9 Avoid Common Appellate Briefing Mistakes

👉#10 Advise your client about important post-judgment issues (Attorney fees and costs; SLAPP fees; Bonds and Stays of Judgment-Enforcement; Post-judgment interest)

💡 Evergreen Tip: Get a Court Reporter!

Last week I presented my talk “Ten Trial Tips from an Appellate Specialist” to the San Francisco Lawyers Network (Feb. 16, 2023).

Here are the tips:

Rule Zero: Make the Record

#1 Make sure your theories of the case are captured in your pleadings

#2 Was key evidence excluded? Preserve the issue by making a proffer.

#3 Keep objecting to evidence if the judge “defers” ruling on your MIL.

#4 Object to Jury Instructions

#5 Review the Verdict for Inconsistences

#6 Request and Object to the Statement of Decision

#7 File a motion for new trial to preserve challenges to the damages amount …and Watch out for JNOVs!

#8 Calculate Appellate Deadlines Correctly

#9 Avoid Common Appellate Briefing Mistakes

#10 Advise your client about important post-judgment issues (Attorney fees and costs; SLAPP fees; Bonds and Stays of Judgment-Enforcement; Post-judgment interest)

Evergreen Tip: Get a Court Reporter!

You may download a PDF of my slideshow by clicking through to the full article.

Thank you to my colleagues who sent me their top tips!

Gearing up for trial with experts? You’re ready with your Sargon and Sanchez objections. But don’t forget Kelly: if the expert’s opinion is outside the consensus, that’s not a Sargon objection—you have to be ready with a People v. Kelly objection.

Filing an MSJ? If the court sets your hearing after your trial date, you’re entitled to get it advanced—or to have your trial continued. (Might be a backdoor strategy to continuing trial dates.)

And a trial court abused its discretion in hearing a SLAPP motion before a restraining-order motion. The SLAPP ruling meant the case was stayed and the restraining-order issue couldn’t be heard. That’s not right. Trial courts need to make sure those issues are heard with or before SLAPP motions.

Ever file a motion only for the clerk to give you a hearing date after trial. Lot of good that does. That happened to the defendant in Cole v. Superior Court, No. D081299 (D4d1 Dec. 30, 2022). So he filed an ex parte to get a timely hearing or continue the trial. But the trial court denied it, telling the defendant that, even though his MSJ was technically timely, he still should have filed it earlier.

That’s wrong, and the Court of Appeal published its opinion granting a peremptory writ. The trial court’s “calendaring issues are not a basis on which the trial court can refuse to hear a timely filed summary judgment motion.”

The court published the decision “to provide guidance on the deadline for filing a summary judgment motion that is served electronically.”

The Upshot: The court’s refusal to hear a timely-filed motion is one of the few areas where the Court of Appeal may be inclined to grant writ relief. So if you have a timely righteous motion, don’t let the trial court deny you a hearing just because of local rules or department calendaring preferences.

After being sued, you have to answer the complaint. That part is obvious. But what about a cross-complaint? If you have cross-claims against the plaintiff, and you don’t assert them right away, can they become time-barred?

Until now, this was a concern. But the recent published opinion in Paredes v. Credit Consulting Servs. (D6 Aug. 8, 2022 No. H048092) holds that the filing of a complaint tolls the statute of limitations for all cross-claims. And the rule applies regardless whether the cross-claim is compulsory or merely permissive.

When assessing options after being served with a complaint, if cross-claims exist, asserting them early is usually a good strategy. But if for whatever reason a cross-claim is not asserted immediately, Paredes provides some assurance that the delay may not result in that claim becoming time-barred.

Georgia appellate attorney Frank Lowrey joins Tim and Jeff to discuss Williams v. Harvey, a recent decision by the Georgia Supreme Court concerning preservation of error and motions in limine, in a June 2021 interview in episode 13 of the California Appellate Law Podcast.

Frank notes the important nuances in rulings on motions in limine: a denial preserves the evidentiary objections raised in the motion, while a deferred ruling (neither granting nor denying the motion) preserves nothing – meaning the trial attorney still needs to object to every instance of the offending matter.

Frank also notes that, in some jurisdictions, a curative instruction is presumes to cure any prejudice. This is the case in California, absent exceptional circumstances. (People v. Navarrete (2010) 181 Cal.App.4th 828, 834 ["Ordinarily, a curative instruction to disregard improper testimony is sufficient to protect a defendant from the injury of such testimony, and, ordinarily, we presume a jury is capable of following such an instruction."].) (One is reminded of the reaction of Dickens’s Mr. Bumble upon being informed the law presumed his wife acted under his direction: “If the law supposes that, the law is an ass — an idiot. If that's the eye of the law, the law is a bachelor; and the worst I wish the law is, that his eye may be opened by experience — by experience.”)

Frank, Tim and Jeff also discussed the recent California Court of Appeal opinion previously discussed on this blog finding an attorney in contempt for accusations made in an appellate brief, and discuss whether the court’s admonition against challenging the courts might be somewhat overstated.

There is an important point of trial practice about filing dispositive motions in limine in Tung v. Chicago Title (D1d3 Apr. 28, 2021) no. A151526 (published). That point is: Don't. The same point is made about relying on nonstatutory motions for judgment on the pleadings: Here is the quote to put in your opposition: "[W]e caution trial judges to be wary when choosing to decide an in limine motion that, no matter how captioned, functions as a nonstatutory motion for judgment on the pleadings, particularly when the motion is filed on the eve of trial. Doing so, under circumstances like those presented here, is a recipe for reversal."

Finally, there is also an excellent tip for expediting an appeal of an early catastrophic trial ruling and avoiding judgment collection pending appeal: dismissing remaining trivial claims (with prejudice), and stipulating to the prevailing party's fees and costs providing enforcement is to be stayed pending appeal. This was a shrewd move by appellant's counsel here, who served their client well.

Read on.