# I'm appealing. Attorneys: ultimate facts/ law v. equity in practice... **URL:** \ **Category:** In My Humble Opinion\ **Created:** [February 6, 2009, 4:36am UTC](https://boards.straightdope.com/t/im-appealing-attorneys-ultimate-facts-law-v-equity-in-practice/484669 "2009-02-06T04:36:17Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Stoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stoid/32/272_2.png) [@Stoid](https://boards.straightdope.com/u/Stoid)\ **Post date:** [February 6, 2009, 4:35pm UTC](https://boards.straightdope.com/t/im-appealing-attorneys-ultimate-facts-law-v-equity-in-practice/484669/21 "2009-02-06T16:35:32Z")
> [@Gfactor](#): > > You might be interested in this, too:[Site Has Moved](http://www.courtinfo.ca.gov/reference/documents/csr2008.pdf) (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](http://www.weintraub.com/content/download/379/4957/version/3/file/Webinar+Slides.+Top+Six+Reasons+for+Reversal.pdf) breaks down the reasons for reversal. Thank you! Very cool. The Weintraub thing is very cool, the general ideas I already understood, but I enjoy a good statistic as much as the next gal. And it’s encouraging, since my #1 issue is one of statutory interpretation, pure de novo. I love that standard because it’s the only one where the appeals court doesn’t even consider the trial court’s opinon on the subject, they just decide how the law is interpreted, and if the trial court failed to interpret and apply it that way, poof! Reversed! ---
**Author:** ![Noel\_Prosequi](https://avatars.discourse-cdn.com/v4/letter/n/b19c9b/32.png) [@Noel\_Prosequi](https://boards.straightdope.com/u/Noel_Prosequi)\ **Post date:** [February 6, 2009, 4:51pm UTC](https://boards.straightdope.com/t/im-appealing-attorneys-ultimate-facts-law-v-equity-in-practice/484669/22 "2009-02-06T16:51:03Z")
**Stoid** , do you have a date set for the appeal? And I don’t mean Marisa Tomei 🙂 ---
**Author:** ![Isamu](https://avatars.discourse-cdn.com/v4/letter/i/7c8e57/32.png) [@Isamu](https://boards.straightdope.com/u/Isamu)\ **Post date:** [February 6, 2009, 4:54pm UTC](https://boards.straightdope.com/t/im-appealing-attorneys-ultimate-facts-law-v-equity-in-practice/484669/23 "2009-02-06T16:54:44Z")
> [@Stoid](#): > > 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) This is exactly how vexatious litigants get started. I’m just saying. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [February 6, 2009, 4:56pm UTC](https://boards.straightdope.com/t/im-appealing-attorneys-ultimate-facts-law-v-equity-in-practice/484669/24 "2009-02-06T16:56:46Z")
> [@Stoid](#): > > 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. Garner. Get Aldisert’s book (the first one I linked). That’s all about how to put an appeal together, what to think about, what to look for, and how to explain it within the rules that apply to appellate briefs and oral arguments. We used it as a textbook when I attended a bootcamp on appellate advocacy. ---
**Author:** ![Stoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stoid/32/272_2.png) [@Stoid](https://boards.straightdope.com/u/Stoid)\ **Post date:** [February 6, 2009, 5:01pm UTC](https://boards.straightdope.com/t/im-appealing-attorneys-ultimate-facts-law-v-equity-in-practice/484669/25 "2009-02-06T17:01:42Z")
> [@Noel\_Prosequi](#): > > **Stoid** , do you have a date set for the appeal? And I don’t mean Marisa Tomei 🙂 Yes, but I’m on pins and needles waiting to hear from them about my consolidation motion. ---
**Author:** ![Stoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stoid/32/272_2.png) [@Stoid](https://boards.straightdope.com/u/Stoid)\ **Post date:** [February 6, 2009, 5:04pm UTC](https://boards.straightdope.com/t/im-appealing-attorneys-ultimate-facts-law-v-equity-in-practice/484669/26 "2009-02-06T17:04:50Z")
I think that was too unclear. Bifurcated trial. two interlocutory judgments. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [February 6, 2009, 5:37pm UTC](https://boards.straightdope.com/t/im-appealing-attorneys-ultimate-facts-law-v-equity-in-practice/484669/27 "2009-02-06T17:37:22Z")
> [@Stoid](#): > > I think that was too unclear. Bifurcated trial. two interlocutory judgments. Wait, so you’re appealing from an interlocutory order? And you’ve determined that the appeal is permitted under the rules for interlocutory appeals? I ask because this is typically a higher burden upon the appellant than the ordinary, run-of-the-mill, appeal after a final judgment. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [February 6, 2009, 6:23pm UTC](https://boards.straightdope.com/t/im-appealing-attorneys-ultimate-facts-law-v-equity-in-practice/484669/28 "2009-02-06T18:23:10Z")
> [@Stoid](#): > > It’s how we roll here in LA, dude. SOP. Having practiced law in California, I can assure you that there are plenty of attorneys who understand that the proper term is _pro se_. 😉 ---
**Author:** ![Stoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stoid/32/272_2.png) [@Stoid](https://boards.straightdope.com/u/Stoid)\ **Post date:** [February 6, 2009, 6:36pm UTC](https://boards.straightdope.com/t/im-appealing-attorneys-ultimate-facts-law-v-equity-in-practice/484669/29 "2009-02-06T18:36:38Z")
> [@Bricker](#): > > Wait, so you’re appealing from an interlocutory order? > > And you’ve determined that the appeal is permitted under the rules for interlocutory appeals? > > I ask because this is typically a higher burden upon the appellant than the ordinary, run-of-the-mill, appeal after a final judgment. The partition judgment is explicitly appealable by statute. The appeal from the other issues in the first trial, essentially dissolution of the LLC with some other stuff thrown in, is iffier. It’s analagous to partnership law, which has two main lines of cases with opposite decisions as to the appealability of interlocutory judgments for dissolution bifurcated from accounting. One line sees the accounting as mere housekeeping, making the interloc a functionally final judgment. The other says no, tbe accounting is more substantive than that and means that the interloc is an interloc and not appealable. (I LURVE Witkin! Tasty goodness!) If memory serves, both sides have had Supreme Court decisions, making it even more of a headache. And to top it off, the bifurcation itself was handled in such a way as to constitute an error, a devastating one. How do you adjudicate issues of worth, ownership, value, and contribution without considering the accounting? Or, to be more accurate, the money? This is very key particularly as it applies to the partition judgment. ---
**Author:** ![Stoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stoid/32/272_2.png) [@Stoid](https://boards.straightdope.com/u/Stoid)\ **Post date:** [February 6, 2009, 6:38pm UTC](https://boards.straightdope.com/t/im-appealing-attorneys-ultimate-facts-law-v-equity-in-practice/484669/30 "2009-02-06T18:38:28Z")
> [@DSYoungEsq](#): > > Having practiced law in California, I can assure you that there are plenty of attorneys who understand that the proper term is _pro se_. 😉 So I’ve heard, but I’ve never once seen it used in official docs. I just ran both through Lexis and pro per came up with the max hits, pro se with none. ---
**Author:** ![Billdo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/billdo/32/315_2.png) [@Billdo](https://boards.straightdope.com/u/Billdo)\ **Post date:** [February 6, 2009, 7:19pm UTC](https://boards.straightdope.com/t/im-appealing-attorneys-ultimate-facts-law-v-equity-in-practice/484669/31 "2009-02-06T19:19:18Z")
Hi **Stoid**. First, let me get out the usual disclaimers: I’m not your attorney (you’re representing yourself, a choice that I feel foolish, but it’s your choice), I’m not licensed in California, I know nothing specific about California law or appellate practice, and this is all just general information about the state of the law not related to your particular case. Let me start with Law v. Equity, because nobody seems to have taken a crack at that yet. I’m afraid, however, you won’t like the answer too much. The American legal system derives in a fairly continuous historical line from the pre-Revolutionary War English system of justice. The English judicial system itself grew in a rather messy way based on multiple centuries worth of politico-legal disputes, developments, power grabs and rare moments of rationality. Oversimplifying, one of the earlier things to develop were the Courts of Law, in which people could sue others for money damages. Over the course of time, the rules of the Courts of Law became very strict and hidebound, with all types of claims having to be fit into a limited number of very specific writs. If your claim didn’t fit into an existing writ, or sought something other than strict money compensation, you were out of luck. As a counterbalance to this, you had the Royal power of the King to do, well, whatever he wanted, to achieve justice (or his own ends). Early on, you could (if you had the right connections, at least) petition the King: “Your Majesty, I’ve been done wrong to. Make it right.” At some point, the King delegated to his Lord Chancellor the responsibility for dealing with all of these petitions, particularly those that said “I’ve been done wrong to in a way the Law courts can’t make right.” The Chancellor set up the Chancery Courts to “do equity”, or make it right. Pretty soon there developed a system of procedures and precedents within the Chancery system about what should or shouldn’t be done to equitably make things right. Thus there developed the Chancery Courts as one of the mutiple “competing” courts under the English legal system (Law Courts, Admiralty Courts, Church Courts, among others). From this, there developed the idea that certain types of claims would be considered “in law” and others “in equity”, based on how they historically would have been heard in the English court systems. The early American justice system maintained the distinction between law and equity (or chancery) courts. However, through the late 19th and early 20th century, most states and the federal system “merged law and equity.” What this meant is that legal and equitable claims would be heard by the same courts under the same procedures. (Note that some states, notably Delaware, maintain separate Law and Equity courts, though they too blur the formerly very strict distinction between the two systems). The current distinction between Law and Equity is mostly a hang-over from centuries of English legal history. To a large extent there is now little difference between legal and equitable claims, though there are still a few important distinctions. Perhaps the most important is that one is entitled to a jury trial for legal claims, but not for equitable claims, which are to be decided in the discretion of the Lord Chancellor (or his successor, the judge). While legal claims tend toward those for which you meet the legal requirements or not, almost all equitable claims (and defenses) have a substantial component of being only available when the judge determines it is proper in the interests of justice. Things like “unclean hands”, which says that one party shouldn’t get relief because he has done something so improper that it is unfair for a court to give him what he wants, are equitable defenses. As to what is law and what is equity, there are some types of claims that fall clearly on one side of the line or another, but there are many things that are in a grey area. For instance, claims seeking injunctions are equitable, but claims for breach of contract are legal. Now, if you are seeking an injunction because of a breach of contract, you have a hybrid claim, in which the court will use legal principles (and perhaps a jury) to determine whether the contract was breached, but equitable principals and judicial discretion to determine if and how to award an injunction. (Don’t get me started on a claim for specific performance of a contract, which has been found to be all over the map.) Now, I believe that claims for judicial accounting and corporate dissolution are pretty consistently considered equitable claims, and I believe that partition claims are too (they’re statutory in New York). From an appellate perspective, this makes challenging an award in these types of cases very difficult, as you have to prove to the appellate court not just that the judge was wrong, but that he or she “abused his or her discretion.” Appellate courts give trial judges wide lattitude in these types of cases. Even on purely legal questions, appellate courts have the ability to excuse all sorts of problems under the category of “harmless error.” On an appeal, the court looks not only at whether the trial court screwed up, but whether that screw-up was significant enough to make the trial unjust. It’s not enough to find that the trial judge didn’t cross one particular ‘T’. Rather, you have to show that if that ‘T’ had been crossed, the trial would (or would likely) have come out the other way. Part of the job of an effective appellate advocate is to take a very complex trial court record, and distill it down to one, two or three (rarely more) particular errors that the trial court made _that make the trial unfair_. Although it can be done, it is very difficult to convince an appeals court that a long series of minor problems cumulatively taints a trial. There have been many times when I’ve tried to convince a court that a peculiar combination of factors has come together to make an unjust and improper result, and, well, it’s a challenging argument. It’s much easier to say: “the judge made a whopper here, one big enough to throw the result out.” Although appellate courts are supposed to decide based on a neutral application of the law, there is a large thumb of abstract justice on the scale. It really helps to be able to convince the court that not are you legally correct, but: “Your Majesty, I’ve been done wrong to. Make it right.” ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [February 6, 2009, 7:39pm UTC](https://boards.straightdope.com/t/im-appealing-attorneys-ultimate-facts-law-v-equity-in-practice/484669/32 "2009-02-06T19:39:28Z")
> [@DSYoungEsq](#): > > Having practiced law in California, I can assure you that there are plenty of attorneys who understand that the proper term is _pro se_. 😉 Isn’t it typically _pro se_ in federal court, and _pro per_ in state? ---
**Author:** ![Campion](https://avatars.discourse-cdn.com/v4/letter/c/4491bb/32.png) [@Campion](https://boards.straightdope.com/u/Campion)\ **Post date:** [February 6, 2009, 7:47pm UTC](https://boards.straightdope.com/t/im-appealing-attorneys-ultimate-facts-law-v-equity-in-practice/484669/33 "2009-02-06T19:47:00Z")
> [@DSYoungEsq](#): > > Having practiced law in California, I can assure you that there are plenty of attorneys who understand that the proper term is _pro se_. 😉 As a current practioner in California, I can tell you that while you may be correct that the so-called “proper” term is _pro se_, it is not used in any court in California in which I have practiced. Pro per is how litigants sign their papers, how judges refer to litigants, and how court staff (and the litigants themselves) refer to them. Even the sign at the filing window in the main LA superior court is “pro per.” I suppose if one were to refer to oneself as a pro se litigant, most people in the California legal system would understand what you meant, but it simply isn’t used. **Stoid** , no advice for you, just good luck wishes. ---
**Author:** ![Caffeine.addict](https://avatars.discourse-cdn.com/v4/letter/c/f475e1/32.png) [@Caffeine.addict](https://boards.straightdope.com/u/Caffeine.addict)\ **Post date:** [February 6, 2009, 8:21pm UTC](https://boards.straightdope.com/t/im-appealing-attorneys-ultimate-facts-law-v-equity-in-practice/484669/34 "2009-02-06T20:21:24Z")
> [@Tom\_Tildrum](#): > > Isn’t it typically _pro se_ in federal court, and _pro per_ in state? That sounds like a California thing. In Virginia, where I am, the state courts use pro se. ---
**Author:** ![Gfactor](https://avatars.discourse-cdn.com/v4/letter/g/9de053/32.png) [@Gfactor](https://boards.straightdope.com/u/Gfactor)\ **Post date:** [February 6, 2009, 8:22pm UTC](https://boards.straightdope.com/t/im-appealing-attorneys-ultimate-facts-law-v-equity-in-practice/484669/35 "2009-02-06T20:22:30Z")
> [@Caffeine.addict](#): > > That sounds like a California thing. In Virginia, where I am, the state courts use pro se. I think it varies from state to state. Here in Michigan it’s _in pro per_. But I’ve worked in other jurisdictions that used _pro se_. ---
**Author:** ![The\_Second\_Stone](https://avatars.discourse-cdn.com/v4/letter/t/bbe5ce/32.png) [@The\_Second\_Stone](https://boards.straightdope.com/u/The_Second_Stone)\ **Post date:** [February 6, 2009, 8:26pm UTC](https://boards.straightdope.com/t/im-appealing-attorneys-ultimate-facts-law-v-equity-in-practice/484669/36 "2009-02-06T20:26:25Z")
> [@Stoid](#): > > 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. Nope, I was always stunningly condescending. > [@Stoid](#): > > 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.”? Yeah, I tired to read your post. I have no idea of what exactly you are trying to appeal. I’m sorry I offended you, but you do seem to have the impression that you know what you are doing. I don’t think you are capable of conveying what relief you want from the Court and why you think you are entitled to that relief under the law. I tend to be blunt in telling my lawyer friends not to represent themselves even in areas they think they know. They know better, but do it anyway and get the usual result. > [@Stoid](#): > > 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. Perhaps you will win. In my experience, the self-represented (lawyers and non-lawyers alike) do have laser like focus: on an irrelevant issue that they cannot stop talking about. I hope that your work is A plus in quality. > [@Stoid](#): > > 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.** Everyone who represents themselves looks like they are mentally defective. And so do you. It does not mean that you are in fact mentally defective. It’s not my intent to insult you, but if a college graduate cannot understand your OP or legal brief (except for the citations), then it is not a well written. Yours is, in fact, a piece of garbage. I say that because I think it is the truth and I hope that it will wake you up to the fact that you are hurting yourself with this stuff and wasting your time. It is akin to a computer user trying to re-write a portion of Word that they think is wrong: it will screw up everything. You need a lawyer. You should not seek advice on a message board for a legal problem anymore than for a medical problem. ---
**Author:** ![Noel\_Prosequi](https://avatars.discourse-cdn.com/v4/letter/n/b19c9b/32.png) [@Noel\_Prosequi](https://boards.straightdope.com/u/Noel_Prosequi)\ **Post date:** [February 6, 2009, 9:21pm UTC](https://boards.straightdope.com/t/im-appealing-attorneys-ultimate-facts-law-v-equity-in-practice/484669/37 "2009-02-06T21:21:56Z")
> [@Stoid](#): > > Yes, but I’m on pins and needles waiting to hear from them about my consolidation motion. And that date would be…? (Just approximately if you want to retain anonymity. I am trying to get a sense of the time constraints you are acting under.) ---
**Author:** ![Stoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stoid/32/272_2.png) [@Stoid](https://boards.straightdope.com/u/Stoid)\ **Post date:** [February 6, 2009, 9:28pm UTC](https://boards.straightdope.com/t/im-appealing-attorneys-ultimate-facts-law-v-equity-in-practice/484669/38 "2009-02-06T21:28:43Z")
Now THIS Is what I was after! A nice filling discussion of underlying theory. And history! You laid it out quite nicely. > [@Billdo](#): > > Hi **Stoid**. Now, I believe that claims for judicial accounting and corporate dissolution are pretty consistently considered equitable claims, and I believe that partition claims are too (they’re statutory in New York). And you are correct, hence my interest in the subject. > [@](#): > > From an appellate perspective, this makes challenging an award in these types of cases very difficult, as you have to prove to the appellate court not just that the judge was wrong, but that he or she “abused his or her discretion.” Appellate courts give trial judges wide lattitude in these types of cases. So I have come to understand. I have been rocked to my toes more than once in my obsessive study of cases. The bar to the appellant is set painfully high, I am very well aware. However, while these cases are considered equity, they are also, to use a term my lawyer girlfriend is fond of, “creatures of statute”. In regard to the LLC dissolution particularly, the judge is bound by the provisions of the statute and has no discretion to add or subtract. That I know like I know my name, and not only did she add and subtract, she diced it up and made soup. Allow me to give you the ultra-concentrated version: Statute says (and all these bits are very common throughout the country in various forms, being taken from the legal blueprint provided by the ABA’s Model Corporations Act – similar laws are found throughout the world, actually) plaintiff can demand dissolution if he feels his rights are being violated. Judge orders dissolution under the applicable statute, which also specifically provides, in detail, for the way in which the remaining members, and only the remaining members, may, if they choose, stop the dissolution buy buying out the complaining member’s interest. (or shares in a corp) There is no ambiguity whatsoever about who gets to do what, when and how. Judge refers to precisely these provisions as she’s giving her verdict, fully expecting that I will invoke these provisions and buy out the Plaintiff’s member interest. Then Attorney Beast interrupts… spews pure gobbledygook, actually lies to the court, violates the doctrine of judicial estoppel by arguing for something he argued 180 degrees against 6 months earlier and in the end result, judge says…gee, I guess we could just blow off these silly statutory provisions and let your guy bid on the LLC’s assets along with everyone else! Okay, let’s do that instead! My lawyer objects, to no avail. Prior to the judgment being filed (which takes almost 3 months!!) I submit a motion for a bunch of things, and in the process point out that the language of the statute is crystal clear, hello. Too bad. When she finally files the judgment, which has been worked over by both parties already, she has inserted things not previously seen. Weirdly, it states that, under the statute, I can buy **my own** member interest for cash….and plaintiff can also bid, along with everyone else, on the assets of the LLC. (And yes, it says it just like that, the meaningless apple of me somehow buying **my own** member interest (shares) all mushed up next to the wholly outside-of-statute free-for-all orange that is the auction of the business that the LLC owns. What in gods name are you talking about?) Okay screw this shit, I’m just going to “act as if” and move for a stay pending affirmation of the value that Plaintiff agreed to (when he anticipated being the buyer) of the business, which constitutes the value of the LLC itself, being all the assets, and my subsequent purchase. **Tentative ruling:** Well, yes, you are right, but….hmmm…how about: Too late! Shoulda done it before! You lose! (Never addressing the fact that she had said I couldn’t do it at all before, making up her own disposition, and I’d had to fight tooth and nail to get her to acknowledge the fact that I had the right at all!) **Hearing:** (first, she admonishes me, before I open my mouth and say word one, to stick to her tentative and not re-try the case. Hey, no problem, your honor, I am directly on point, I assure you!) I cite the only three cases that say anything even remotely connected to timing. All three indicate, one very explicitly, that the provisions for stopping dissolution can be invoked **at any time** , there is no time limit whatsoever. Attorney Beast responds by reiterating all the complaints made about me at trial, and does not direct a single meaningful word in support of the tentative and against my argument. ( He did that pretty much every time we stood before her. I came to call it his “She is evil! Stone her!” rant, coupled with some whining about how the judge had made rulings… kind of like the way a little kid says to his mother: “But you SAID!!”) The Final Decision: identical to the tentative. I was too late. And that is why I feel pretty good about appealing that particular issue. And as long as I’ve gone there, here’s another example of what I’ve been dealing with: Every practice guide in California states, based on a Supreme Court decision in 1947, I think, that an appeal from an interlocutory judgment for partition is automatically stayed without bond. The referee and the Attorney Beast don’t like that, so they run to her and say no way! She says: brief it. (And tells the referee/receiver that while we are briefing it, he can go ahead with his unlawful detainer action against me. Me. A lawful owner on title. That’s a whole other story in itself… ) We do. I cream them both. (the receiver, being very invested in preventing me from getting a stay, elects to brief it. Unasked. Badly. He’s not a lawyer, not even an accountant. Just a guy with power issues.) So much so that she has no choice, again, but to admit that yeah, I’m right, but….well, we have a receiver. Doesn’t apply when there’s a receiver. So file an undertaking in the amount of a quarter million dollars to stay the partition sale. But, your honor, undertaking to stay the judgment is to protect the value of the award to the prevailing party. Our house is worth less than we owe. A stay harms him not at all where he has no equity. Herself: I’ve ruled. Two hours later, I file a creatively styled request for correction. The case I gave her, one of the two she cited in affirmance of the stay of partition without undertaking….had a receiver. Says so in the first paragraph of the case. So your creative exception is irrefutably bogus, all due respect and everything. The silence was deafening. So are you getting a feel for what I’m facing here? A judge who might have at first just made a boo-boo…but is now pretty ego-invested. I think we went past concern for the plaintiff and crossed over into a battle of wills between her and me. She wasn’t going to let some pornographer make HER wrong, no sirree. > [@](#): > > Even on purely legal questions, appellate courts have the ability to excuse all sorts of problems under the category of “harmless error.” On an appeal, the court looks not only at whether the trial court screwed up, but whether that screw-up was significant enough to make the trial unjust. It’s not enough to find that the trial judge didn’t cross one particular ‘T’. Rather, you have to show that if that ‘T’ had been crossed, the trial would (or would likely) have come out the other way. So I ended up buying the business under protest at the “auction” triggered by the Plaintiff’s bidding for it. I filed a Notice of Protest and made the referee sign it, in which I stated plainly that I was going to appeal the auction sale even if I won. I paid 4 times what I would have paid for his member interest, easily twice what it was worth as a whole, and it went into the kitty to be split in the accounting. As of this writing, the referee has taken more than half of it. When I got the business, the referee had screwed things up so badly that all income stopped for four months, and when it resumed, it was at 30% of what it had been. My credit is destroyed, and I’m up to my eyeballs to my friends, who are now the proud owners and my new employers. I think that rates as “harm”, but what do I know? ---
**Author:** ![Stoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stoid/32/272_2.png) [@Stoid](https://boards.straightdope.com/u/Stoid)\ **Post date:** [February 6, 2009, 9:39pm UTC](https://boards.straightdope.com/t/im-appealing-attorneys-ultimate-facts-law-v-equity-in-practice/484669/39 "2009-02-06T21:39:08Z")
> [@Noel\_Prosequi](#): > > And that date would be…? (Just approximately if you want to retain anonymity. I am trying to get a sense of the time constraints you are acting under.) Approximately now if they deny the motion. I’ll get a notice of default and the clock will commence. But I’m not starting from zero, obviously. I’ve been at this for a year, and the writs were great practice runs. The most unnerving part is really the appendix. I feel pretty comfy with the legal reasoning and the writing, but collecting, orgainzing and correctly annotating the paper? Hives. And with everything being such a dreadful mash, pulling together a clear roadmap through the transcripts is going to be quite the project. Again, I’ve read them all and highlighted and tagged… but that’s very different from distilling it. If I get my consolidation I am hoping to e-file as well. I’ve become quite the Acrobat weenie through this process…helluva program. Interesting factoid I learned from a friend who works at Adobe: Acrobat funds the whole show. NotPhotoshop, not any combination of the rest of it. Acrobat. Makes sense once you think about it. ---
**Author:** ![Stoid](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/stoid/32/272_2.png) [@Stoid](https://boards.straightdope.com/u/Stoid)\ **Post date:** [February 6, 2009, 10:02pm UTC](https://boards.straightdope.com/t/im-appealing-attorneys-ultimate-facts-law-v-equity-in-practice/484669/40 "2009-02-06T22:02:43Z")
> [@The\_Second\_Stone](#): > > Yeah, I tired to read your post. I have no idea of what exactly you are trying to appeal. Not at all surprising, since I had made no attempt to convey that information. > [@](#): > > Everyone who represents themselves looks like they are mentally defective. And so do you. Because you were expecting something and didn’t find it? What an odd conclusion. > [@](#): > > You should not seek advice on a message board for a legal problem anymore than for a medical problem. Probably good advice I’ll consider if I ever find myself seeking advice for a legal problem on a message board. And my advice is that you avoid assuming you understand what someone intends to say and making genuinely rude comments about it when you have, by your plain admission, failed to actually take in that person’s communication. Just a thought. [Previous page](https://boards.straightdope.com/t/im-appealing-attorneys-ultimate-facts-law-v-equity-in-practice/484669.md?page=1) [Next page](https://boards.straightdope.com/t/im-appealing-attorneys-ultimate-facts-law-v-equity-in-practice/484669.md?page=3)