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!
Stoid, do you have a date set for the appeal? And I don’t mean Marisa Tomei 
This is exactly how vexatious litigants get started. I’m just saying.
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.
Yes, but I’m on pins and needles waiting to hear from them about my consolidation motion.
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.
Having practiced law in California, I can assure you that there are plenty of attorneys who understand that the proper term is pro se. 
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.
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.
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.”
Isn’t it typically pro se in federal court, and pro per in state?
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.
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.
Nope, I was always stunningly condescending.
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.
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.
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.
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.)
Now THIS Is what I was after! A nice filling discussion of underlying theory.
And history! You laid it out quite nicely.
And you are correct, hence my interest in the subject.
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.
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?
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.
Not at all surprising, since I had made no attempt to convey that information.
Because you were expecting something and didn’t find it? What an odd conclusion.
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.