Legal News and Appellate Tips

This comes up every call I get after a judge trial: the statement of decision. The statement of decision in a bench trial stands in for the verdict in a jury trial. It tells you—and more importantly, the Court of Appeal—what findings the court made and what theories it accepted. Pretty important if you’re planning to challenge those findings and theories on appeal.

But you don’t have an automatic right to a statement of decision. And very commonly, parties—even their attorneys—are tricked into thinking they have a statement of decision, when really all they have is a tentative decision.

In this clip from episode 74, we discuss why a statement of decision is important, when to request one, how some judges might actually try to trick parties into not requesting a statement of decision, and when you might not want to request one.

After interviewing dozens of guests on the California Appellate Law Podcast, Jeff Lewis and I recapped some of the best briefing tips from 2022. In this clip we cover:

😱Judges’ three key fears when deciding cases (via Ross Guberman)

🗡️Kill your darlings—find the cleverest line in your brief, and delete it (via Ross Guberman)

🏔️Litigation is an expedition—you have to bring the judge along the journey with you. You can’t magically teleport your reader to the destination by way of adverbs. (Via Justice Lambden)

📜It’s the best argument that wins—not the best citation. (Via Justice Lambden)

Has your client decided to enforce the judgment before the appeal is over? Beware, says collection attorney Joseph Chora—after losing an appeal, a judgment creditor is liable in restitution. (The plaintiff in Dr. Leevil LLC v. Westlake Health Care Ctr. was liable for $5.7 million, as written up here: https://lnkd.in/geJWrrin.)

But on the flipside, judgment creditors should be on the lookout for grounds to file a disentitlement motion, which are supported when the appellant refuses to comply with court orders—including judgment enforcement discovery.

After the theatrics of trial comes the sleep-inducing reading of the law. Do jury instructions matter? Studies show that jurors don’t even understand jury instructions, so what is the point of the judge taking a half day at the end of trial putting the jury to sleep by reciting all those CACI forms?

Appellate attorney Stefan Love agrees that jury instructions are ceremonial…but they are not JUST ceremonial. The jurors swear an oath to follow the law, and telling them what law applies is the bookend to that oath.

Sometimes you CAN beat city hall. But the city, even after a court loss, can still win.

Municipal law attorney Peter Prows discusses strategies to keep in mind if you ever go up against the city.

The key takeaway: Once its made up its mind to do something, a city (or agency or whatever) will keep trying until it gets its way. So if you sue the city, don’t bring a claim that is easy for it to fix. You want to prevail on a claim that will constrain its discretion the next time around.

Even Supreme Court Justice William Brennan remarked on how difficult it is to beat a city attorney, in this passage, quoting a city attorney giving advice to colleagues at a conference of the National Institute of Municipal Law Officers in California:

"IF ALL ELSE FAILS, MERELY AMEND THE REGULATION AND START OVER AGAIN. "If legal preventive maintenance does not work, and you still receive a claim attacking the land use regulation, or if you try the case and lose, don't worry about it. All is not lost. One of the extra 'goodies' contained in the recent [California] Supreme Court case of Selby v. City of San Buenaventura, 10 C.3d 110, appears to allow the City to change the regulation in question, even after trial and judgment, make it more reasonable, more restrictive, or whatever, and everybody starts over again. . . . . . "See how easy it is to be a City Attorney. Sometimes you can lose the battle and still win the war. Good luck."

(San Diego Gas & Elec. Co. v. City of San Diego (1981) 450 U.S. 621, 655 n.22 (Brennan, J., dissenting) (quoting Longtin, Avoiding and Defending Constitutional Attacks on Land Use Regulations (Including Inverse Condemnation), in 38B NIMLO Municipal Law Review 192–193 (1975)).)

Consider these two alternatives for ending a brief:

“This Court MUST reverse.”

“This Court SHOULD reverse.”

Stefan Love, who reviewed John Blumberg’s book Persuasion Tips for Trial Lawyers, explains why you should consider the latter choice.

No one—judges included—like being told what they “must” do.

But what if the authorities are clear that the result is compelled as a matter of law? That makes it tempting to write “the Court MUST do what I say.” On the other hand, you ought to have made it clear in your argument already what the authorities say.

So the better choice is to tell the court that the result you want is merely correct—and don’t dare the court do disagree by insisting that it is “compelled.” As Stefan says, the Court of Appeal doesn’t want to be ordered around.

But of course, the decision is up to you.

“One more thing,” the appellate attorney darkly muses. “Be ready to file a protective cross-appeal.”

Wait, what? What the heck is that? Is this just one more way we appellate specialists try to get added to trial attorneys’ speed-dial?

Here a 3-minute explainer. Basically, just remember: if you lost a verdict but won a JNOV, think protective cross-appeal—because if you lose the JNOV, then you’re back to challenging that nasty verdict again.

Everyone knows two things about the deadline to appeal:
1. The deadline is 60 days.
2. You can get an extension if certain posttrial motions are filed.

But the 60-day rule is only partly correct. The posttrial timing can be slippery. And there are more complexities besides.

In this 5-minute clip, Jeff Lewis and I discuss how to calculate the deadline to appeal. We also discuss that while the deadline to file an appeal is jurisdictional, and thus not subject to any equitable or discretionary exceptions, there are in fact at least five official exceptions to the jurisdictional deadline to appeal. (As well as unofficial exception that the court may simply ignore the fact that an appeal is untimely.)

The five official exceptions are:

1. Public emergency. (Rules 8.66, 8.104(b).)
2. Clerk wrongly rejects a timely notice of appeal. (Rules 8.25(b)(1), 8.100(b)(3).)
3. Prison-guard rule. (Rule 8.25(b)(5).)
4. Ineffective assistance of counsel in filing an untimely appeal (in criminal and juvenile dependency appeals). (In re A.R. (2021) 11 Cal.5th 234, 243, 276.)
5. Failure in the e-filing system. (Rule 8.77(d). Garg v. Garg (2022) 82 Cal.App
.5th 1036, 1051.)

File away these two “gold nuggets” for next time you enforce a judgment, courtesy of judgment-enforcement specialist Joseph Chora:

1. If the debtor is transferring assets to third parties, sure, you could file a fraudulent-transfer complaint. But why? You can simply levy on the transferred asset. Not only is this faster and cheaper, but it puts the burden of proof on the debtor and transferee to prove the transfer was valid.

2. With a little research, attorneys can handle most aspects of judgment enforcement, but consider farming out these two tasks:
• Asset research—if you don’t know what you’re looking for, you’re likely to miss it.
• collecting on real property—there are too many technical requirements likely to wrongfoot you if it’s your first rodeo.

You have an avalanche of evidence for your upcoming trial. Document after document, email after email, photo after photo, and witness after witness promise to bury your opponent.

But are you overdoing it? Appellate attorney Stefan Love, drawing on the lessons from John Blumberg’s
Persuasion Science for Trial Lawyers, notes that “we can’t hold on to that much information at once.”

We also relate one of the studies in Blumberg’s book about some study participants who were given a series of numbers to remember and report to scientist with a clipboard at the end of the hall. The first group did fine, but the second group were confronted with one extra bit of information before they reached the fellow with the clipboard. With brains already filled to the brim, the last bit of information made the earlier information spill out.

Lesson: There is such a thing as too much evidence. Consider carefully what it is going to take to persuade, and then stop.

It has been called “the law that swallowed California.” CEQA, the California Environmental Quality Act, accomplished good things at its inception in 1970 but now it is used to thwart nearly any kind of development someone doesn’t want.

“CEQA is not intended as a population control measure,” observed the Court of Appeal in a recent CEQA case, Tiburon Open Space Comm. v. Cnty. of Marin (May 12, 2022, A159860), which rejected a neighborhood group’s efforts to stymie a development project. And yet the way it is used today suggests that “[s]omething is very wrong with this picture.”

In this clip, Peter Prows, an environmental attorney who handles a lot of CEQA cases, runs down the good, the bad, and the ugly of CEQA and the Tiburon case:

The original “grand design” of CEQA was not to frustrate the democratic process but to promote it: projects could go forward, “but only after the elected decisionmakers have their noses rubbed in [the project’s] environmental effects, and vote to go forward anyway.”

Matt Taibbi’s article about how CEQA, as deployed today, acts as a backdoor subsidy to owners of California’s existing housing stock, paid for by new entrants to the housing market (who happen also to be laboring under swelling tuition debt).

CEQA is often used to frustrate high-density projects. But Tiburon involved a decades-long battle to thwart just 43 single-family homes. CEQA can be used as a bludgeon for anyone, so there is something to hate for everyone.

When you are trying to enforce a judgment, you may be tempted to seize special personal property, like mementos, or the beloved family pet. But while these are personal property, if they do not have significant value, it will be seen as an improper purpose. So that might not be a good strategy.

But judgment-enforcement attorney Joseph Chora suggests a couple of good collection practices:

💡Does the debtor have a girlfriend? Set the examinations for the debtor, his wife, and his girlfriend all on the same day. You may find that the examinations will quickly become unnecessary.

💡Does the debtor have valuable intellectual property? The creditor may be able to acquire the IP for nominal value, depriving the debtor of its golden goose. In one case, Joseph relates, this resulted in settling the judgment for 125% of its face value!