I'm appealing. Attorneys: ultimate facts/ law v. equity in practice...

In My Humble Opinion
1

Well, I’m knee deep in my appeal work and slogging through some rather thorny concepts. (If any of the folks that were around 18 months or so ago and weighed in about my handling my own case are wondering, see the end of this post. It’s been quite a ride…)

I’ve read some definitions, but I’d like your thoughts on the meaning of the terms in the title, as well as “probative facts” and “evidentiary facts”.

I’ve studied all 177 pages of Deerings on the subject, and of course, as ever, the inconsistencies in case law can give a person hives.

I do have a basic understanding, I’m just grappling with my basic grasp as it plays out in the case law and as I parse the judgment(s) (yes, plural…oy - the “one final judgment” rule is all well and good when the court itself respects it, which mine doesn’t!) and orders. So if you have something helpful and interesting to add to my understanding, I’d appreciate it.

(The trial court’s errors fall under all three standards of review: de novo, abuse of discretion, and insufficiency of the evidence. Fortunately for me the slam-dunk portion of our show is pure de novo, but there are big, important issues that call for review under the other two, and I know the evidence standard is the next best thing to hopeless, alarmingly enough. Again, fortunately for me, I’m pretty strong there. But I know I still have a lot of work in front of me to sell it.)

I think this is from the Rutter group, and it’s a very solid explanation… as long as we’re having a purely theoretical, very cut & dried discussion:

As I say, clear as far as it goes, it gets muddier as one applies it. Which brings me to part 2, Law vs. Equity.

The previous is particularly useful if the case you are looking at includes issues of liability, damages, guilt. But what if the issues are those of equity? The causes of action in my case were partition of real property, dissolution of an LLC, and accounting. After all is said and done, all that needed to be done was determine ownership, contributions, value, disposition and distribution. And that’s what was done…with a whole lot of incredibly damaging, wasteful, pointless other junk thrown in to gum it up. But no liability, no wrongs, no damages. So a little trickier in that sense.

A clear meaning of equity is important because so much case law casually refers to “actions in equity” equitable actions", etc. I think I understand, but what I really seek is to grok…

Also: anyone with appellate tips and tricks, I’m listening!

(And** BEFORE YOU GO THERE:** [“there” being “You need to hire an attorney!] I had an attorney for the main event. He was part of a “Perfect Storm” of legal insanity that landed me in the mess I’ve been trying to undo for over a year. He bailed literally less than an hour after the verdict was given. I then had another attorney who still advises me, but who was really just overseeing my work and running some interference. I took over officially as a pro per litigant in April '08. I researched and wrote all of the documents a the end of this post (titles are truncated and censored, it’s just to give an idea of how much of my own legal work I’ve done.)
I also handled a second complete trial on accounting that took 5 days over 2 months, with evidence, cross-examination, closing argument, the whole nine, as well as two separate actions that the receiver tried to bring.

I’ve learned an enormous amount, part of which has been that having a bar number doesn’t mean one knows everything or even most things. And not having a bar number doesn’t mean one is a clueless dolt destined to be crushed by the system. It depends entirely upon the case, the facts, the law involved, and the parties. What lawyers can be depended upon to know for sure is really not all that much beyond knowing how and where to look to find out whatever it is they need to know.

Put another way, what I’ve learned is that most of the regular posters in Great Debates would probably do just fine if they had to be their own lawyers. The law is language, reasoning, debate and command of the facts, and the Great Debaters are all about that, just for fun. Which is why I’ve taken to it.

Declaration Of Atty #2 In Support Of Objections To
Declaration Of Stoid Stoid In Support Of Objections To
Objection To Proposed Interlocutory Judgment
Declaration Of XX In Support Of Motion For
Declaration Of XX In Support Of Motion For
Declaration Of XX In Support Of Motion For
Notice of Motion And Motion For Reconsideration Of
Reply in Support Of Memorandum Of Points And Authorities To
Declaration Of Stoid Stoid In Support Of Replies To
Reply in Support Of Memorandum Of Points And Authorities To
Declaration Of Atty #2 In Support Of Replies To
Substitution of Attorney
Request for Judicial Notice
Declaration Regarding Election To Avoid Dissolution Via
Declaration In Support Of Motion For Stay Of Dissolution
Order Shortening Time To Hear Defendants Motion To
Ex Parte Application For Order Shortening Time For Notice Of
Proof of Service On Ex Parte Application For Order Shortening
Declaration Of Defendant, Stoid Stoid In Support Of Reply
Reply to Opposition Ord App/ To Motion To Stay Dissolution Pending
Application For Waiver Of Court Fe Es And
Notice of Appeal_
Report Status Re: Receiver’s Report For May 2008
Proof of Service_ Memorandum Re: Stay Of Enforcement Of Partition Judgment
Objection To Receiver’s Motion For Court Confirmation Of
Reply Brief Re: Effect Of Appeal To Court’s Pending Orders
Reply Brief Supplemental) Reply To Plaintiffs Reply To
Objection To Undertaking To Stay Dissolu Tion Of Llc And
Request for Correction Or Order For Undertaking
Notice of Protest
Declaration Of Stoid Stoid Regarding Notice Of Protest
Response To Plaintiff’s Objection To Receiver’s Motion And
Declaration Of Stoid Stoid’s Declaration Re: Status Of
MOtion to transfer
Notice Of Withdrawal Of Motion And Motion To Transfer
Declaration Of Stoid Stoid In Response To Receiver’s Ex
Notice of Motion And Motion Requesting Instructions To
Ex Parte Application For Order Shortening Time To Hear Motion
Order On Exparte: Shortening Time To Hear Motion
Objection And Reply To Referee’s Supplemental Brief
Declaration Of Stoid Stoid In Support Of Reply To
Declaration Amended Proof of Service Of Atty #2
Supplemental Brief Re: Cites To Record
Opposition to referee’s request for interim payment
Declaration re referee’s report
Objections to Proposed Judgment
Request for Statement of Decision
Corrections and Amendment to Objections
Brief regarding co-tenancy and ouster
Declaration in response to referee’s report
(and of course, lots of Points and Auth memos that were part of the documents, vs. filed separately)

and I’m working right now on an objection to the court’s current orders… (the case is a mess. Your head would explode)

2

I don’t agree.

As a lawyer, I can tell you that under no circumstances would I attempt to litigate a civil matter myself – I would hire someone, because my own expertise is not in this area of law.

And if I were a criminal defendant, I would hire a lawyer even though I have a fair amount of expertise in this area. It is procedurally … difficult … to act simultaneously as a witness and an advocate.

The one comment I will make that many people involved in the criminal process had trouble grasping: the appeal is NOT about re-weighing the evidence. The facts have been decided against you. The questions revolve around what errors happened at trial. Period.

Good luck to you.

3

I’m going to try and piece together what you’re doing. You’ve cited Deering’s, Rutter and quoted an example with the word “California” in it. As a result, Watson, I can see that you have a legal problem under California law, or at least you think you do. You also seem to think that it is a problem involving the dissolution of a limited liability partnership. You state that you are “appealing”, which none of us doubted. You probably meant to say that you are an appellant, which means that you have already lost your case in the lower court, and as Brother Bricker has pointed out, is not about determining what the evidence is, but rather is about whether if all the evidence is construed favorably to the lower court, whether the lower court botched the law, or improperly admitted some evidence. Understandably, you have no clue. The law was made by the haves to allow them to keep being haves and keep the have-nots from taking the good stuff away from them unless there is no way around it.

A very wise man, who was a California Appellate lawyer (and who is now deceased) once said to me: “Second, don’t start drinking until lunchtime. And remember, the first rule of appellate law is to win in the lower court.”

A lawyer who represents himself has a fool for a client. Albiet a well educated fool. I have never seen a lawyer represent himself without making a fool of himself. An unrepresented person who represents themselves is a uneducated fool with no idea what they are doing. None. You are wasting your time. You need a qualified attorney to review if there is anything appealable or otherwise salvageable in this mess if it is not completely finished already. That will cost you money. I would suggest checking you local phone book for appellate lawyers. Anybody who purports to give you advice on this message board other than get a local appellate lawyer is not qualified to give that advice because they do not know your case.

Private email me with your location.

4

Jeez, lawyers are so predictable!

75% of librarians at the LA Law Library know me by first name. I’ve lived there and at UCLA for most of the past year. I have complete copies of either the entire volumes or sections on civil appeal from CEB, Rutter, Bender, Witkin, and Cal Jur and you think you are rocking my world with the information that appeal is not a do-over? I understood that about 5 minutes in. (Which is actually what makes appellate work so intriguing and intellectually challenging!)

Oh, I forgot to say that I’ve researched and written a petition for writ of mandamus and a petition for writ of supersedeas. The second one I got an appellate lawyer to put his name to without changing a single word, just in case the justices in my division had the sort of knee jerk response to the words “pro per” that so many in the legal profession do. (And this is a lawyer who made it quite clear when I first asked that nothing has his name on it that he considers less than A+ work. I was pretty happy about that.)

Well, as it happens, the reason I’m appealing it is because it is abundantly clear that it is not the judge’s area of expertise either. If it were, I wouldn’t need to appeal, or at least, I wouldn’t have so much in the way of error to go forward with the appeal. She’s spent her whole life in criminal law, switching only a few years ago to civil, probably so she could bulk up her civil resume in anticipation of big arbitration and mediation fees when she retires.

This would be preaching to the choir that just ran through that very minefield…

Assuming that the person in question has the intelligence and general aptitude, among other things, there are a few small advantages to representing yourself, the two most obvious being a thorough understanding of the facts and a genuine passion and commitment to the cause that simply cannot be matched by someone who has been hired. The flipsides to those things are also obvious, but also the things most often stated.

I’ve had just enough input from a few lawyers to keep me moving in the right direction, as well as confirming my view of the case and the judge. It’s not just a disgruntled defendant here, believe me; the lopsided insanity of this thing is remarkable.

5

The other thing you learn in law school is that the law is cases, and that facts are more important than almost anything else. You’re asking for some sort of dissertation on appellate argument.

Unfortunately, we have no facts, not even a specific area of law, nor jurisdiction (though I assume California). From my experience, though, most pro se folks tend to treat cases, especially appellate work, as some sort of process where the right magic words will win the case. Further, since this is an ongoing, specific matter and you’ve made your feelings about the profession clear, you’re not likely to get any substantive legal advice.

Other than to get a lawyer to look at your case from a different perspective.

6

Wow. Is it a chip of some kind embedded in your brain when you get your J.D. that forces you to be so stunningly condescending? I mean…damn. Did you actually read my post before you decided to type out: “I can see that you have a legal problem under California law, or at least you think you do. You also** seem to think **that it is a problem involving the dissolution of a limited liability partnership.”?

That’s not the predictable suggestion that maybe I would be better off with a professional, in light of the information in my post, and the stage I’m at, that’s nothing less than talking to me as though I’m mentally defective.

May I suggest a systems check?

Fortunately, one does not need clues when one has a complete and clear understanding of exactly what the errors were, as well as the standard of review which is applicable to each. Hence my reference to “slam dunk”.

Are cliches part of that chip?

The problem is not that I am representing myself. The problem is that attitudes and belief systems like yours are pervasive, and, as with you, serve to form an impenetrable bubble around the lawyers and judges that render them almost completely deaf and blind to anything except that which is being channeled through others lawyers and judges.

Interesting tidbit I found marginally satisfying: through a surprising chain I won’t go into publicly, I had occasion to hear about a remark that was made very recently by one of the support staff in my judge’s court. After being told by someone in the ADR office that the judge’s order was not legal (this would be her specialty; she seems to think that trial court judge and monarch are the same thing) he replied “Yeah, I know, she has no idea what she’s doing. She just listens to whichever lawyer is the loudest and does what they say.” Yep.

On preview:
ivn: I’m not looking for legal advice. I was looking for a discussion regarding certain legal ideas. Ideas that have nothing to do with areas of law, or rather, the “area of law” is procedure. Findings of fact, conclusions of law, equity vs. law… these are basics I was simply looking to discuss as part of my process of getting my education.

Which brings me back to The Stone:

An unrepresented person who represents themselves? Seems they are represented. By themselves. :smiley: But you are right about education being critical, I dont’ disagree with you there at all. Where we part company is in defining education. I happen to be a life long auto-didact, and it has served me very well. On the other hand, I have known a depressingly large number of people with impressive degrees whose mental processes remind me of a Roomba more than anything else.

And that brings me back to my remark about what lawyers know. The law is staggeringly vast. What I have learned, what all the lawyers I know have freely stated, is that the best you can hope for is to master some small corner of it. And even then, you will find yourself going back to the library again and again as new cases come along with new wrinkles. Well, I can do that too. And hey, that’s another kind of roundabout advantage I have: precisely because I am coming from no background at all, I’m being perversely thorough. I know I don’t know so I’m making sure that I really know what I think I know after I study it. As a result, I have actually gotten a level of expertise about my little slivers of the law that surpasses what any other legal professional I’ve dealt with has; they are all spread all over the place with their cases, their areas of law, etc. I have the luxury of laser focus.

7

A common mistake. Legal arguments are not at all fun undergraduate bickering about “logical fallacies” and the like. Mere intelligence and verbal facility are well short of sufficient. Legal arguments are immensely technical, and the fact that you can’t know what you don’t know is the fundamental problem facing all lay people who self-represent. The stuff you are asking about is stuff you have to have long experience in doing in order to have an understanding of. Law is not like mathematics. Much professional judgment is involved, balancing competing considerations. You can’t just look up a black-and-white answer that exactly fits the circumstances of your case.

Having said legal arguments are immensely technical, that does not mean that they necessarily take very long. Generally the judge/s and counsel have such a deep knowledge of background principles that they don’t need to actually articulate them because judges and counsel each know the other knows them. They talk in coded shorthand. For example, an English appellate lawyer might talk about “Wednesbury unreasonableness” in two words which are code for a whole raft of concepts and learning which an urepresented person would know nothing about. There are no doubt similar codes and shorthand phrases used by American lawyers. They get to the sticking point very efficiently. But you don’t have this deep knowledge.

I will say with great confidence that you almost certainly will have missed the critical point in your case entirely by focussing on what seems to be important to you while losing sight of some howlingly obvious problem that you can’t have known about. My confidence is based on a career during which I have never seen an unrep’d litigant, no matter how intelligent or well-educated outside the law, get the point. And I have seen a lot.

There are more booby traps for the untrained in appellate law than I can possibly warn you about, but Bricker drew attention to one of the most difficult - this is not simply a replay of the trial. Findings of fact are very hard to overturn. Another booby-trap is that there is a very strong principle in favour of the proposition that you are bound by the conduct of your counsel below. It is very hard to overturn this, particularly in civil actions. Just whining about how he was a dud will rarely get you very far.

You should also be aware that one of the first signs to a court that they have an obsessive crank on their hands is prolix documents. The undoubtedly hard work you have put in is not necessarily going to translate into an advantage. Even if the facts are complicated, most viable appeals come down to one or two points of argument. I am not giving you advice about how to run your specific case, just giving an example of what can go wrong.

If you are doing all this for your own amusement, then go ahead, but you need to go into the Hall of Mirrors and have a good hard look at yourself if that is all this is about.

If there are real consequences at stake, drop the paranoia and get a good lawyer.

Sometimes, exceptionally rarely, unrepresented people win. But invariably it is for reasons that had nothing to do with what they thought they were arguing about.

It usually pans out like this (the following assumes an appellate court with multiple judges).

You turn up all breathless and excited on the big day, organising your carefully prepared documents, nodding politely to the other lawyer, thinking to yourself “Hah! Little does he know what a storm of grief I am about to rain upon him.” He will likely ignore you.

Judges come in. You start to talk. You get about 30 seconds into your presentation when a judge hits you with a proposition you completely fail to understand. It completely throws you off your stride. You have no answer except to complain generically about “fairness”, or to talk about some piece of evidence that is actually irrelevant because you have missed the point of the interruption. The judicial interruption may be some procedural point. It may be something to do with the substantive law. Whatever. The judge/s will patiently try to draw you to the point to see if you have any answer. And you won’t, because you didn’t foresee it coming. They will satisfy themselves that you have no answer.

They will sit back. They will patiently let you talk yourself out for a while. They will interrupt to stop you being too lengthy, almost certainly in the middle of what you think are your good points. You will be confused and disoriented because the plan you had of your argument is rapidly going to pieces.

You will sit down. If the other side is called on at all, it will likely be very brief. They will talk in code.

You will almost certainly lose. You will be utterly puzzled and will not understand how the argument that you thought was elegant and devastating could possibly fail.

This is because you don’t know what you don’t know.

Not having a lawyer in this is a waste of everyone’s time.

Usual disclaimer - I am not your lawyer, I have no knowledge of the specific circumstances of your case, this is not legal advice.

8

Supposing this were correct. Would that not make it even more imperative for you to be represented by a bona fide lawyer?

I mean, if your goal is to obtain a favourable ruling in your case, then you certainly need access to the ability to break through this bubble to the judge and others involved. If your goal is just to stand tall and be right, to demonstrate a point about the system, whatever, then, of course, your needs may differ.

9

I’m going to come back to rest later, but I wanted to respond to this, because this goes to the heart of what has happened in this case.

Very briefly, the above was my original lawyer’s point of view. And to be fair, I now understand that he was right…in the normal universe. But we ended up in Bizarroland, and because he was so wedded to his belief system about the whole thing, he was not prepared or willing to deal with the situation he was really in, when it turned out to be different from what he thought it should be.

Now I will clarify a little.

Plaintiff, in the form of his Beast Attorney From Hell who, I’ve now come to believe, is genuinely incapable of speaking the truth, knew he had a shit case. So…he made ridiculous accusations and tried to turn the case into something other than what it really was. I was going nuts every time a new discovery document or motion of declaration or whatever arrived, brimming with horseshit, wildly inconsistent, infuriating and crazy-making. I was so offended and very concerned about making sure that the truth was proved and defended.

My lawyer, while trying to be sensitive to how disturbing this was, kept telling me that all the noise coming from the other side was just noise. The judge would see that, see what was really going on, and cut to the chase: who owns what, what is it worth, who pays who?

I was trying really hard to trust him, that he was right, but my gut wasn’t happy.

Trial.

Well, turns out we got a judge who wants to hear all the junk they want to talk about. All the unimportant junk that my lawyer said was not the issue. All the junk that I was brimming with exhibits and evidence to conclusively disprove. Exhibits and evidence that my lawyer (who really is no slouch, trust me. He’s remarkably accomplished with two masters degrees, speaks 7 languages, and a nearly flawless track record in trial – he was an old friend of the family doing me a favor and really never believed we’d see the inside of a courtroom.) didn’t’ steep himself in because he was certain it wouldn’t matter.

So all the stuff…the untrue stuff, we must never, ever forget… I was freaking out about turned out to matter to this judge.

Now I’m educated. Now I understand in a way I really couldn’t before that my lawyer was exactly right in his expectation. I know why he expected that the smoke and mirrors the other side was producing would be brushed off. It should have been.

But the perfect storm, which, in the movie at least, had storms from three directions, included, in addition to my lawyer being unprepared to argue against something he shouldn’t have normally had to argue against, the Beast Attorney From Hell and Queen of the Court. The Beast convinced the Queen that the Plaintiff was a Victim. Not to the degree that he would have liked to, but enough to get the Queen to say: Statutes? Statutes? Who said statutes? Off with their heads! I am the Queen and I decide what the law shall be…and it shall be whatever I need to arrive and the end goal I want…and the Beast has given me a way to do it. Yes, it’s thin, it’s convoluted, and he’s violated several important doctrines of law, he’s committed fraud upon the court, The Victim has committed perjury…but no matter!

Sigh….

10

The mere fact that you think you are proceeding in propria personam instead of pro se suggests that you don’t know as much as you think (though in fairness, many attorneys make that same mistake). :wink:

11

Moving from GQ to IMHO at request of OP.

Colibri
General Questions Moderator

12

Just skimming your OP made me think of all the pro se appellants I encounter who think they will be able to win their case as they learn the law on the fly.

I always welcome pro se cases, becuase they invariably miss the determinative issues, and instead waste tons of time advancing confusing arguments on irrelevant issues. Makes my job easier, because the court generally knows what is what. So I can simply present my client’s best case on the relevant issues, and dismiss the pro se arguments with little other than a general observation that they are either irrelevant, unfounded, or just plain silly. But what do I know - I’ve only been doing this for two decades. Knock yourself out.

Here’s a hint - getting a JD by itself means next to nothing in terms of knowing how to handle a specific type of legal matter.

Here’s another hint - no matter how “right” you may be, that is no guarantee at all that you will prevail in litigation - or on appeal. I regularly lose cases that I ought to win, and win cases I ought to lose. Goes with the territory. One of the reasons most people go to considerable lengths to avoid litigation, including settlement even if they consider their position ironclad.

13

It’s how we roll here in LA, dude. SOP.

14

Something else I know now is that if I had done this when I first thought of it, before trial, I would have been a total wreck and probably have blown it horribly. I needed to get to the other side of it first, get a feel for the room, so to speak. My understanding and point of view is radically different than it was in certain respects, certainly.

I don’t doubt that this has been your experience in the least.

Again, the depth and breadth of my understanding of this comes from very bitter personal experience. I am very much aware of the lack of guarantees. But I do hold on to the hope that what my lawyer pals tell me is true: state court judges are frequently terrible, but appeals court justices are, generally speaking, cut from a different cloth.

Settlement is no longer possible. Without a reversal, there is nothing left to settle, really, not to mention the critical gap in Her Honor’s understanding of what it takes to settle: (she’s been admonishing us since her judgment about settling.) In order for settlement to occur, each party must have something to gain, and something to lose. If one party has everything to lose and the other nothing to lose, why would the party with everything bother talking settlement? To be a nice guy? Gain brownie points? After dragging us through this slash-and-burn nightmare to begin with? Can I get some of whatever you’re smoking?

(IN response to my request for a statement of decision and my objections to her proposed judgment, she has, almost a month past her expiration date, summoned us all to court this Monday to listen to her ideas for settling “some of the remaining issues” - she then goes on to list all of the issues we started with. Only now, post-receivership - and hey, is that a license to steal or what? - and in the modern economy, there’s nothing left. So it will be interesting to hear what she’s come up with.Unless she undoes some of what she’s done first, I just can’t imagine what she’s thinking is possible at this point.)

15

Judges can be real jerks. No question about that. Of course, so can appellate judges. I offer as examples Judges Posner and Easterbrook in the 7th, and S.Ct. Justice Scalia.

IME in many appellate courts the primary concern appears to be figuring out how they can affirm. I’d be surprised to hear of any appellate court in which appellees did not face a substantial hurdle.

Your OP impresses me as asking some pretty specific and sophisticated questions - but like I said, I only skimmed it. IMO the fact that you are asking such questions on a MB does not bode well for your chances of prevailing against someone who already has a favorable decision on the merits and is represented by a professional who knows these - and other procedural and substantive law - like the back of their hand.

Good luck with your appeal. But I do not envy you trying to handle it yourself. IMO&E a litigant’s inability to find some whore/lawyer to handle their case says a lot about the “value” of that case and its likelihood of success.

16

A. Wow… what a scam!

B. Maybe. And who will be paying for this lawyer? <cricket> Well then, I guess it’s a damn good thing I’m smart and willing, isn’t it? Which has made me really concerned about the people who aren’t so smart or able and have no money either.

The system is fucked. The law is not supposed to be impenetrable and the exclusive province of $400-an-hour suits, and it’s disturbing to see how relentless most lawyers are in promoting the idea that it should be this way.

If I end up going to law school, as I believe I shall, I want to have a practice that specializes in limited scope representation, helping people help themselves, because this attitude is not just bullshit, it’s hideously insensitive to the economic realities of your average bear. This case should never have happened. We were not rich enough to have this kind of fight. But because he was on a mission, I had no choice, and it has been ruinous. If I were not as capable as I am, I would have quite literally been put on the street six months ago, and I don’t imagine for a minute that my situation is unusual.

17

I don’t have a lot of time right now so I’ll just recommend a few books:

Each of these books has tips on good appellate advocacy.

I’ll also suggest checking out some appellate oral arguments. The California Supreme Court has some recorded oral arguments here: Site Has Moved

You can get podcasts of oral arguments before several of the federal appellate courts too:

http://www.ca7.uscourts.gov/fdocs/docs.fwx
http://www.ca8.uscourts.gov/oralargs/oaFrame.html
http://www.ca9.uscourts.gov/media/

Good luck.

18

I genuinely appreciate the acknowledgement, even with the caveat. At least your knee isn’t bashing you in the face…

II don’t think you would say that if you saw the pleadings. :smiley:

As for asking on a message board…well, I have regular chats with three different lawyers, I’m fortunate enough to report. But more often than not, and I am not bullshitting you: I stump them, I do the research, and then I educate them. In fact, one of them is the attorney who filled in for awhile, and he called me with a case that he had taken that was the mirror of mine. Because I knew the case law so thoroughly, I was able, in 5 minutes, to pull out what he otherwise would never in a million years have seen: a very casual passing reference made to the formula for an undertaking as prescribed by statute that included something not considered in the statute or referenced in any other case that in my friend’s case would drive the number through the roof, which is what he wanted, in order to force the other side into settlement. Incredibly obscure. He would never have found it because he wouldn’t have known to look for it and it wasn’t something that had been or ever would be highlighted. But this area of law actually has a relatively small number of cases over the past 100 years, so few that I really have read every single one front to back with highlighting. And this one wasn’t actually citable! I told him that but he went with it anyway, and it worked.

But you know exactly how it normlly is: lawyers won’t go three sentences without talking about needing to thoroughly absorb the entire case in every particular, (see one of the above posts that went into that posture immediately: can’t discuss general ideas or laws or anything unless I know all the ins and outs of your case!) which they won’t do if they’re not hired, and that will be $250-$500 an hour, please. Oh, you don’t have it. Good luck, gotta go!

But here on the Dope I hoped to have a discussion about these ideas without getting the same kinda noise.

Pardon me, I find that offensive. I assure you, if I had the funds I’d have lawyers begging me for this one. The three lawyers I spoke of have made that clear. It has zip to do with the case, and everything to do with the bank account.

19

Thank you for the contribution.

I’ve read several really good books, including the one that Scalia wrote with … ah, can’t remember his name, but he’s The Man when it comes to legal style manuals.

Really my biggest challenge in this is making it very clear to the court how very unclear and messy this case has been! Most of the reading I’ve done that is more than straight procedure, such as the Scalia book, is about how to really get through to judges who are drowning in boring, badly written, overstuffed goo. They want it to be crisp, concise, lively if possible. The questions they are to answer should be very clear. Don’t give too much, don’t assume too much… finding that balance between making sure it’s sufficiently explained to be understood by people who have zero background vs. my natural tendency, being as steeped in it as I am, to assume that they will be able to fill in blanks.

If it weren’t so critical to my real life, I’d actually find the challenge rewarding for its own sake. Which is why I may end up in law school at the age of 50. My ex-lawyer, the one I talked about in the previous post, never stops bugging me: when are you taking the LSAT? He’s absolutely sure he can get me into USC, his alma mater. I don’t have the heart to tell him I want UCLA.

20

You might be interested in this, too:Site Has Moved (especially page 40).

Civil appeals have a 20% reversal rate in California courts of appeal. That’s actually pretty encouraging.

This www.weintraub.com/content/download/379/4957/version/3/file/Webinar+Slides.+Top+Six+Reasons+for+Reversal.pdf breaks down the reasons for reversal.