Legal News and Appellate Tips

Each week, TVA appellate attorney Tim Kowal reviews several recent decisions out of the appellate courts in California, and elsewhere, and reports about the ones that might help you get an edge in your cases and appeals.

If you would like to receive weekly updates of the articles posted here, click here to sign up for the newsletter.

Tag: Trial Irregularities and Structural Errors

Recent Case Tips on Expert Objections, and Strategy on MSJ & SLAPP Hearings

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.

Read More
Excluding Expert's Rebuttal Opinion Can Be Grounds to Reverse Jury Verdict

In one of the many lawsuits by hip-replacement patients against Zimmer, Inc., the maker of the Durom Cup, a court of appeal recently held the trial court committed structural error when it improperly excluded Zimmer’s expert to rebut the plaintiff’s expert. See Kline v. Zimmer, Inc. (May 26, 2022, B302544) __Cal.App.5th__, 2022 Cal.App.Lexis 460. This is surprising because, normally, trial court rulings on evidence are reviewed for abuse of discretion, and errors are only reversed if the appellant shows they affected the result. But the exclusion of a rebuttal expert here resulted in automatic reversal.

Read More
Is the Right to In-Person Trials Enforceable?

Defendants are entitled to an in-person trial in criminal cases. The California Constitution says so. But the Court of Appeal now holds that, even if you are denied that right, […]

Read More
Exclusion of Expert Opinion Held Structural Error on Appeal Requiring Automatic Reversal

In one of the many lawsuits by hip-replacement patients against the maker of the Durom Cup, Kline v. Zimmer, Inc. (D2d8 may 26, 2022) ___ Cal.Rptr.3d ___ 2022 WL 1679539 held the trial court committed structural error when it improperly excluded Zimmer’s expert to rebut the plaintiff’s expert. This is surprising because, normally, trial court rulings on evidence are reviewed for abuse of discretion, and errors are only reversed if the appellant shows they affected the result. But the exclusion of a rebuttal expert here resulted in automatic reversal.

Basically, the plaintiff offered an expert to opine that the Durom Cup was the cause of the pain and suffering. Zimmer’s expert was going to opine about other possible causes, even if they were less than 51% likely to be the cause. The trial court excluded it because medical expert opinion has to be 51% likely.

The Court of Appeal reversed. A defendant’s expert doesn’t have to prove 51% likelihood. The 51% threshold is the plaintiff’s burden of proof, not the defendant’s.

And where the excluded rebuttal opinion was the only rebuttal opinion, the exclusion leads to a “one-sided presentation of evidence.” This was a structural error, requiring automatic reversal.

The Upshot: This is the second reversal after a trial, which means the parties will have to try this case a third time. The trial judge, the Hon. Daniel J. Buckley, is a former personal-injury defense attorney. This suggests that, despite the care and experience devoted to this trial, trial procedure governing experts is both extraordinarily important and extraordinarily variable. To the extent expert issues can be crystallized in motions in limine, trial counsel should consider taking up a writ petition.

Read More
There’s Actually a Big Difference Between Motions for Nonsuit and Judgment: A Rebuttal to Prof. Martin

The trial court may not deem the right to a jury trial waived simply because the plaintiff failed to comply with local rules, like failing to submit trial binders.

That is the important point about waiver of the right to a jury trial in Amato v. Downs (D4d2 May 6, 2022 No. E075421) -- Cal.Rptr.3d ----, 2022 WL 1438723.

But I disagree with Prof. Martin about whether this structural error should result in automatic reversal. Prof. Martin thinks it should not, because the trial court granted a judgment under Code of Civil Procedure section 63.8 after the plaintiff rested his case in chief. Prof. Martin takes this to mean that sending the matter back for a jury trial would just waste everyone’s time.

I suggest that Prof. Martin has overlooked that a trial judge making a judgment under section 631.8 is sitting as a trier of fact. It is not a judgment as a matter of law like a nonsuit or JNOV.

So Prof. Martin and I agree that the Court of Appeal here got it right. But the fact that the plaintiff could not persuade the judge does not mean it would be futile to afford him his constitutional right to try to persuade a jury.

Read More
Employee Challenging Defense Verdict on Appeal Could Not Overcome the Difficult "Finding Compelled as a Matter of Law" Standard of Review

Another recent case instructs plaintiffs not to think they can reverse a defense judgment by arguing that "substantial evidence" supported a verdict in the plaintiff's favor. Instead, to overcome a defense verdict, a plaintiff must establish on appeal that the evidence was so overwhelming and uncontroverted that findings for the plaintiff were "compelled as a matter of law." Plaintiffs can almost never meet this burden, and the plaintiff in *Snoeck v. ExakTime Innovations, Inc.* (D2d3 Nov. 29, 2021) 2021 WL 5563958 (no. B302178) (nonpub. opn.) could not meet it, either.

Also of note: The plaintiff did prevail on one claim, but did not beat the employer's 998 offer. But when the employer moved to tax costs, it did not attach the 998 offer to the moving papers. It attached it instead to the reply papers. Held: it was an abuse of discretion to consider the 998 offer if not attached to the motion itself.

Read More

Tags

Podcast (117)
Videos (100)
Appealability and Appealable Orders (37)
Legal Writing (29)
Anti-SLAPP (27)
Abuse of Discretion (24)
Mischief (24)
Splits of Authority (23)
Unpublished Opinions (22)
Statements of Decision (21)
Notices of Appeal (20)
Waiver and Forfeiture (20)
Stays on Appeal (20)
California Supreme Court (20)
Judgment Enforcement (18)
Oral Argument (18)
Timely and Untimely Appeals (18)
Arbitration (18)
Attorney Fees (17)
Record on Appeal (17)
Trial Strategy (15)
Dismissals (14)
Sanctions (14)
Briefing (14)
Evidentiary Objections (14)
Writ Petitions (13)
Dissents (13)
Appellate Sanctions (13)
Summary Judgments and Summary Adjudications (13)
Civility (12)
Dismissed Appeals (12)
Preliminary Injunctions (12)
Timeliness (12)
Collateral Orders (12)
Jurisdiction (12)
Exclusion of Evidence (12)
Experts (11)
Family Law (11)
New Trial Motions (11)
Mootness (11)
CCP 998 Offers (11)
Trial Procedure (10)
Federal Courts (10)
Motions for Reconsideration (10)
Posttrial Motions (10)
Admission of Improper Evidence (9)
Implied Findings (9)
Settlements (8)
Standards of Review (8)
Appealability (8)
Disqualification (7)
Default Judgments (7)
Stipulated Judgments (7)
Appellate Bonds (7)
Ninth Circuit (7)
Pretrial Procedure (7)
Probate Appeals (7)
Respondent Arguments (7)
Mediation (6)
Petitions for Review (6)
Appellate Briefing (6)
Depublished Opinions (6)
Ethical Duty of Candor (6)
Substantial Evidence (6)
Appellate Practice (6)
Discovery (6)
Litigation Tips (6)
Trial Irregularities and Structural Errors (6)
Motions to Vacate and Set Aside Judgments (5)
Notices of Entry (5)
Federal Appeals (5)
Legal Ethics and Professional Responsibility (5)
Summary Judgments (5)
Finding Compelled as a Matter of Law (Failure of Proof) Standard of Review (5)
Excessive Damages (5)
Standing (5)
Appealable Orders (4)
Right to Jury Trial (4)
Motions to Vacate (4)
Expert Opinions (4)
Tentative Rulings (4)
Appeals Treated as Writs (4)
Frivolous Motions (4)
Trust and Probate (4)
Demurrers (4)
Motions in Limine (4)
Disentitlement Doctrine (4)
Jury Waivers (3)
Prejudicial Error (3)
Landlord Tenant (3)
Frivolous Appeals (3)
Stays (3)
Law and Motion (3)
Recovery of Costs (3)
Pretrial Issues (3)
Amicus Briefs (3)
Summary Judgment (3)
Legal Tech (3)
Personal Jurisdiction (3)
Juror Peremptory Challenges (3)
Motions to Dismiss (3)
Jury Instructions (3)
Stare Decisis (2)
Contempt (2)
Judicial Admissions (2)
Waiver (2)
Class Actions (2)
Appeals Dismissed (2)
Medical Rights (2)
Pleadings (2)
Judicial Bias (2)
ADA and Unruh Accessibility Actions (2)
Record Designation (2)
Premature Appeals (2)
Harmless Error (2)
Podcasts (2)
Stipulated Reversals (2)
Alter Ego (2)
PAGA Actions (2)
Comments (2)
Legal Practice (2)
Remote Arguments (2)
Post Reversal Issues (2)
Finality and Final Orders (2)
Standards of Evidence (2)
Invited Error (2)
Untimeliness (2)
Constitutional Law (2)
Trial by Reference and Pro Tem Judges (2)
Attorney Client Privilege (2)
Civil Theft (2)
Forfeiture and Waiver (2)
Motions to Quash (1)
Preclusion (1)
Waived and Forfeiture (1)
Exhaustion of Remedies (1)
Notice of Appeal (1)
Punitive Damages (1)
Support Awards (1)
Free Exercise (1)
Attorney Fees - CCP 1021.5 (1)
DismissalsAppealability and Appealable Orders (1)
Record (1)
Tentative Opinions and Focus Letters (1)
Court Reporters (1)
Attorney Feese (1)
Clear and Convincing (1)
Covid (1)
Settled Statements (1)
Attorney Misconduct (1)
Judicial Estoppel (1)
New Arguments (1)
Administrative Law (1)
Clerks Service of File Stamped Judgment (1)
Family Court (1)
Third Parties and Nonparties (1)
Mistrials (1)
Typeface (1)
Bankruptcy (1)
Judicial Misconduct (1)
New Trial (1)
Premises Liability (1)
Writs of Mandamus (CCP 1085) (1)
Closing Argument (1)
Law of the Case (1)
Out-of-State Litigant (1)
Moot Appeals (1)
Post-Appellate Issues (1)
Split Decisions (1)
Typography (1)
Benefits Obtained Trespass Damages (1)
Employment Law (1)
Judicial Notice (1)
Referral Fees (1)
Inconsistent Verdicts (1)
Post Reversal (1)
Split of Authority (1)
U.S. Supreme Court (1)
Judicial Philosophy (1)
PAGA Attorney Fees (1)
Trade Restraints (1)
Designating the Record (1)
Incorrect Decisions (1)
Motions for Judgment on the Pleadings (1)
Ninth CircuitAbuse of Discretion (1)
Anecdotes (1)
Common Interest Doctrine (1)
Per Se Errors (1)
Treble Damages (1)
Dicta (1)
Inherent Authority (1)
PostJudgment Litigation (1)
Unsupported Arguments (1)
Evidentiary Presumptions (1)
Juror Misconduct (1)
Product Liability (1)
Consenting to Judgments (1)
Restraining Orders (1)
Trespass (1)
Civil Code 3334 (1)
Nonsuit (1)
Forfeiture (1)
Issue Selection on Appeal (1)
Precedent (1)
Nonsuits JNOVs and 631.8 Judgments (1)
Property Rights (1)
Summary Reversal (1)
Constitutional Litigation (1)
Local Rules (1)
Petitions for Rehearing (1)
Review as Writ Petition (1)
Landlore Tenant (0)
Appellate (0)
No categories Legal Writing (0)
Professional Ethics (0)
Petitionf ro Review (0)
Retainer Agreements (0)
crossmenuchevron-down