Legal News and Appellate Tips

In two surprise post-trial moves—likely driven by embedded appellate counsel—a plaintiff first lost her case, then won it back.

The employee won her whistleblower claim after a jury trial in Ivie v. Astrazenica Pharmaceuticals LP, No. 21-35978, 2023 WL 3563007 (9th Cir. May 19, 2023). But then Astrazenica moved for judgment as a matter of law, and won. The grounds: the employee failed to prove a sufficient factual nexus to Oregon to establish a claim under the state’s whistleblower statute.

Tough break for the employee.

But on appeal, the employee argued that Astrazenica never raised its “Oregon-nexus argument” in the parties’ joint pretrial order. So Astrazenia forfeited that argument.

Astrazenica argued that the district court, by granting its motion for JMOL, impliedly amended the pretrial order to include the defense. But that doesn’t work, the majority concluded. While the district court did have discretion to amend the joint pretrial order, it would need to do that explicitly, and give the plaintiff an opportunity to respond to the belatedly-asserted defense. That didn’t happen here.

Dissenting, Judge Bumatay noted that, while Astrazenica did not “explicitly” identify the Oregon-nexus defense, it did assert a “failure to state a claim” defense and pleaded that the employee was not entitled to any relief on the Oregon whistleblower claim. The district court concluded that the lack of explicit mention of the Oregon-nexus defense did not prejudice the employee.

Coming to the point, Judge Bumatay concluded: “That doesn't seem wrong—Ivie hasn't proffered any additional evidence that she would have admitted at trial if she had more express notice of the extraterritorial defense. The district court's ruling then seems to fall within its discretion.”

Judge Bumatay also noted that, while the majority is right that the joint pretrial statement should not be amended after-the-fact if it would prejudice the plaintiff, the majority did not point to any prejudice here. And yet Astrazenica was deprived of a meritorious defense.

Judge Bumatay wonders: “So I'm not sure why *El-Hakem”—and its provision that a defense is preserved if the pretrial order makes any reference to it—*doesn't apply here.”

Takeaway: Pay close attention to the joint pretrial orders before a trial in federal district court. Local rules typically provide that any claims or defenses not mentioned will be deemed waived or forfeited.

But on the other hand, I would not count this result is typical. For every precedent supporting a forfeiture, there is a precedent supporting an exception. If you are going to argue forfeiture, be prepared to show how allowing the belated assertion would result in prejudice. That was not shown here, which makes the majority’s result surprising—and suggests Judge Bumatay is probably correct in his dissent.

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!

Merely hiring a court reporter is not enough. Jimmy Azadian explains how sidebars, missed objections, proffers, and hostile judges can all present obstacles to making your trial record. Jimmy shares with co-hosts Jeff Lewis and me about how he has addressed these kinds of problems while serving as embedded appellate counsel.

What is “embedded appellate counsel”? Jimmy explains that, too. And why trial attorneys should consider having embedded appellate counsel at their next trial.

Jimmy, Tim, and Jeff then talk about why California courts, unlike federal courts, do not provide audio recordings of trials. Our courts have the equipment. A statute even provided for electronic audio recordings, as did a Judicial Council rule. But then a powerful lobby got the program permanently mothballed.

“I forgot to move my exhibits into evidence!” Many trial lawyers have made this sudden realization, often in the middle of the night in a cold sweat. But two recent cases (and a fistful of antacids) may get you back to sleep again.

At the trial between the two partners in a restaurant business in Amirnezhad v. Ghayam (D2d8 May 4, 2022 no. B306361) 2022 WL 1401387 (nonpub. opn.), Amirnezhad prevailed and got an award of almost $160,000 in attorney fees and costs. the basis for the fee award was a promissory note.

But, the note was not admitted at trial.

No problem, the Court of Appeal held. Under Dodson v. Greuner (1938) 28 Cal.App.2d 418 (Dodson), if the circumstances suggest the exhibit was intended to be offered and admitted—that is, it was authenticated, discussed at trial, and there was no dispute about its admissibility—the exhibit may be deemed admitted on appeal.

The Upshot: If you forgot to move a key exhibit into evidence, argue the Dodson case. If you laid the foundation for the exhibit and there was no dispute over its authenticity, then under Dodson the appellate court may deem the evidence to be part of the trial record.

(But you still have to make sure the missing exhibit is part of the appellate record. For this, consider consulting an appellate specialist.)

Although the defendant specifically invoked his constitutional and statutory right to to be “personally present” at his sentencing hearing, the California Court of Appeal in People v. Whitmore (D4d3 no. G059779) 2022 WL 1284371 ___ Cal.Rptr.3d ___, held that limiting a defendant to a virtual appearance, while legally improper, creates no harm. The court affirmed the 10-year sentence.

My Comment: I don’t know about this. I mean, how do you prove that the denial of your right to an in-person hearing hurt you? Here are some possible ideas:

• If you have poor audio or connection quality, say so, early and often.

• If you struggle with or are distracted by the virtual software interface, say so — again, early and often.

• If someone is speaking off camera, like a clerk, alert the court that you cannot see who is speaking.

• If you have an opportunity to speak and you would prefer to stand, tell the court you would like to do so, but that you will need to adjust your camera and microphone. Insist that the court indulge you for as long as that process takes.

• Maybe you like to gesticulate while speaking? You should indicate you are making hand movements but that you are not sure if they are all within the frame.

• Maybe you move your head from side to side or modulate your voice when speaking? You should note that you are not sure whether the microphone is picking up everything.

• In short, demonstrate that conducting the hearing virtually rather than traditionally was distracting, limited your presentation, and ultimately prevented you from the most effective advocacy possible.

What do you think, #AppellateLinkedIn? Will these ideas work?

Here is one reason why trials are so stressful:

What do you do after the jury hears something improper? Object and draw attention to it? Or do nothing and waive?

Appellate attorney Frank Lowrey discusses the options with Jeff Lewis and me. The law presumes that curative instructions purge any prejudice by the offending statements. But one is reminded of the retort Dickens put in the mouth of Mr. Bumble in Oliver Twist upon being informed the law would presume his wife acted at his instruction: "If the law supposes that, the law is an ass — an idiot."

Filing a critical motion in limine could be key to your trial.
What about 40 motions in limine?

Appellate attorney Frank Lowrey says he’s heard trial judges refer to these as "stupid motions in limine."

Do you still have to object if you filed a motion in limine? While a denial of a MIL preserves your objections, a deferred ruling preserves nothing.

Counsel must be prepared to make contemporaneous objections at every instance to preserve the objection.

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.