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

In My Humble Opinion
81

Rand Rover and Billdo are correct. Keep it simple. You don’t want the court to lose interest in your brief or not be able to determine what the error that you are complaining about is. Keep your statement of facts short. Don’t use run on sentences. What you want to have happen is that a law clerk can pick this up and understand in a few minutes and figure out what the error is and where the trial judge screwed up. Leave out as much as you can on things that don’t concern the appeal. Most appeals are decided on the briefs. Be able to sum up your argument in a few minutes if need be.

Where I am, the courts in general frown on long winded briefs. Any motions argument should be kept down to five pages. For longer arguments you have to get on a briefing schedule, and what happens there is that the judge may force you to keep winnowing your arguments down. Appellate practice is similar in that they don’t have to accept your brief and may be looking for reasons to affirm the judgment. Again, please keep your arguments simple and dispassionate.

I’m not sure how it works in California, but appellate briefs here have to be in a very precise format. What most attorneys do is use a printer who is near the court who specializes in appellate briefs. You send it to them, and they format it for you. There may be something similar for the appellate court you wish to appeal to.

Make sure you are appealing the case to the right appeals court. Sounds simple right? I know an attorney who screwed that up in a case. He appealed to the Court of Appeals of Virginia and not the Virginia Supreme Court. The Court of Appeals didn’t have jurisdiction in his particular case so he missed the appellate deadline.

  • While at this point, I think you need an attorney, it has been made abundantly clear that it isn’t going to happen.
82

In my experience, this is wrong. Judges (in downtown LA, at least), carry caseloads of 400-600 cases, both contracts and torts, and all flavors in between. Although the damages are alleged to be at least $25K, the flavors of cases range immensely. There isn’t a single judge in LA county who would tell you truthfully that he or she knows all the law out there – they rely on the parties appearing before them to tell them what the law says. (Sure, most of them know the stuff like the summary judgment standard, or the basics on 1717 attorney fees, but even in those areas there can be value in citing law for something other than a basic proposition. Did you know that 1717 can apply to a contract silent on attorneys fees and governed by New York law? Logic would tell you that if it’s governed by New York law and silent on fees, you don’t get your fees; but there are 1717 cases that come out precisely the opposite way – and you’d definitely want to cite those to your judge.)

Having sat through morning call in a number of courtrooms, I can tell you that most judges are grateful if the parties have presented a well-thought out, articulate case in their papers.

83

^
No one will admit they know all the law out there, and if they do they are lieing.
What I meant was that the Judge dose not need a lecture on the law, a trap many junior practioners fall into (I know, I did). Obviously you want a well reasoned and well argued case, supported by well drafted papers etc, but from my own experience (albeit not in California) inexperienced practioners often end up lecturing the judge on law. For example in a Bail application, you don;t need to rehase the various statutory and common law rules on bail, or precedent, unless there is a sticking point, just argue the facts, The same rule applies in tort or contract, cases, you don’t need to tell the judge about say negligence or misrepresentation, they know them very well, they would like to hear arguments on the issues at hand and precedents that support it.

84

I am also one of those who had to read and re-read the OP to figure out what your point was. If your briefs, etc. are similar in nature, the appeal court judges will not be pleased. I am of the opinion that if the above, “to engage in a discussion about legal ideas,” was really your goal, rather than “looky what I can do!,” the OP would have read more like:

I understand that you cannot afford to hire a lawyer and I understand that you are very concerned about the issues. I wish you the very best of luck, because you are going to need it. I truly hope you prevail on appeal, if the trial judge is indeed as incompetent as you claim (which does happen sometimes, unfortunately). But you need to seriously dial down the vitriol against the judge and the lawyers involved so far (and on this board - no one here wants you to fail; they just know your odds improve considerably with a good appellate lawyer).

Focus on *reversible *errors only - not how terrible the judge was or how wrong the plaintiff was or how reprehensible the opposing lawyer was or how incompetent the your lawyer was. Just get over all that. It does not matter at this point. That’s just irrelevant emotional baggage.

In addition, may I point out that you may certainly still settle this matter at any time prior to the appeals court’s decision? Even the “winner” below has a stake in settlement - they could lose the appeal; they don’t want this to drag out indefinitely or to pay lawyers through this appeal and perhaps another. I don’t know what you or the plaintiff below are looking for, but there is always middle ground.

Good luck. Let us know what happens.

85

I’m, not sure if we’re talking about the same thing. I meant the published reasons that would appear in a printed reporter such as you would find in a law library; or that would appear in an online database, such as Westlaw or LexisNexis. If the judge rendered a decision, she would (might? see below), as a matter of course, write up the decision and it would be published.

I say “might” because it is not uncommon in my jurisdiction, in the very low courts, such as Small Claims, for a judge to either dispense with written reasons; or, many times, to simply have his or her oral remarks when making the decision transcribed. Of course, decisions coming out of higher courts of first instance will always have published reasons. But even if the matter comes out of a very low court and is going to a higher court for appeal, the low court judge will always publish reasons at some point. Certainly, the appellate court will need them. I don’t know about your jurisdiction, but I would imagine that, as here, no case could be appealed without the lower court’s written or transcribed reasons (which necessarily contain the trial court’s findings of fact) being published at some point.

It sometimes takes time for the judge to write reasons, so I’m unsurprised if the trial judge was reluctant to provide anything at the time. But if you haven’t already, you may want to look through your local law library and the online databases to see if your judge ever published reasons subsequently. You wouldn’t want to arrive on the day of the appeal to find that both the opposing side and the bench are equipped with published reasons that you believed were unavailable. See if your local law librarian can do a little digging for you.

And if he or she turns anything up, can we have a look too?

86

It is not usual for decisions of State level trial court judges to be published, at least not in any state in which I have practiced. Final Orders at the trial level are written (often they are drafted by counsel and then signed by the judge) and filed with the Clerk of Court, who certifies the record for appeal if notice of appeal is filed.

87

I know you’re a very smart and savvy woman. And I know you can’t afford to hire an attorney to represent you in your appeal, but would one of your attorney friends be willing to “second chair” for you, either pro bono or at a significantly reduced fee just to be there to catch any potential errors, make objections you might not be aware you can make, answer questions you might not have anticipated, etc.?

Congratulations on the motion you’ve already won, and all the best of luck in winning your appeal outright!

88

Okay. I’m going to address your OP because you’ve explicitly asked us to. But I am going to include at the end of my post some additional thoughts you might not be so interested in. My “fee” – which of course I’ll never know if you pay – is that if you read the first part, you read the second part as well, and with as open mind as you can maintain.

IMO as a former trial lawyer who handled her own appeals, there are two things you need to worry about on appeal – facts and law. I don’t practice in Cali, have never practiced in Cali, so I could be completely wrong about this in Cali, but everywhere I’ve ever practiced, the distinction between “evidentiary facts” and “ultimate facts” doesn’t really matter, especially on appeal. I assume that’s why the authority you’re citing to says "In the past, lawyers and judges struggled with these distinctions." IMO, in the examples that authority uses, you’ve got one question of fact (did defendant consume a fifth of vodka and then proceed to drive his car? [Q#1]); one question of law (did defendant violate California law? [Q#3]); and one combined question of law and fact (did defendant drive [fact question] while under the influence of alcohol? [Q#2]. (“under the influence” is legally defined (BAC of .08 or whatever), therefore arguably a question of law.)

Whether a mixed “question of law and fact” is actually best characterized as a “question of law”, or a “question of fact”, is the sort of esoteric, hornbook-writer’s navel-gazing question that almost never matters in reality. Consider it law, or consider it fact – heck, put it in both places.

IOW, unless the distinction between “evidentiary facts” and “ultimate facts” has been specifically and literally put at issue in your case, then parsing out the difference is a largely useless tangent and a waste of your time. You need to set forth the facts and explain why they show that the judge was in error – not spend your time trying to characterize the facts. The facts themselves are what is important, not how you would legally describe them.

Equally esoteric in most cases – and therefor equally as must of a tangent and a waste of time – is parsing out the distinctions between “law” and “equity.” At law, “equity” means either your interest in a thing (such as a business) – your fair share – or it means, generally, fairness. Cases brought “in equity” are asking for the judge to make a determination as to whether something was fair or not.

But the reason that the distinction is unimportant in most cases is that the vast majority of judges assume – rightly assume, IMO – that in the vast majority of cases, if they follow the law and reach a legally defensible conclusion, they will have automatically reached a fair (equitable) conclusion as well. They only really drill down to the difference between what is “legal” and what is “equitable” when the two conflict – when doing the strictly legal thing would be unfair, i.e., inequitable. That is very, very, VERY rare. It almost certainly is not a descriptor of your case – and remember, it doesn’t matter if you think the result is unfair, it only matters if the judge does. The loser of a case almost always thinks the result was unfair; that doesn’t change anything. Thus, worrying about the difference is almost certainly not the best use of your time. Structure your arguments to set forth the facts that support your position; explain where and how the judge erred (citing the law that shows him or her to be in error); and then, if you want to at the end, briefly explain – briefly explain – why not finding for you would be inequitable (unfair). (E.g.: “I had exclusive responsibility for this business for five years, and didn’t draw a salary. To split the assets 50/50 as the judge decreed disregards the value of all that work, and unfairly gives the other party assets he/she never worked for.” Or whatever.)

In other words, if I may be be brief – too late! – you are in the weeds of legal esoterica when you should be hammering together a clear and simple and short argument for why the judge was wrong and the appeals court should overturn him. And you should keep foremost in your mind that the appeals court will assume the lower court made the correct decision, so you must clearly show the mistake – not just that the court could have ruled the other way, or you’d be better off if they had, but that they were wrong to rule as they did.

You need to be clear, you need to be concise, you need to marshal your facts in a logical and simple fashion and show how they lead to the conclusion you want. Judges are only human, they get bored as fast as anyone else, unless it’s a subject of great interest to them, and LLCs are a subject of great interest to surprisingly few people, judges or otherwise. Judges also get exasperated, and they have a tendency to think pro se litigants don’t know what they’re talking about – because most of them don’t. So, yes, you are at a disadvantage there.

What raises red flags in your OP to me are these points:

(1) Although you say that you believe law is not some dense unknowable field only accessible to lawyers – and you’re right – and you resent those who act like you have to have a law degree to successfully represent yourself – and maybe you should – you nevertheless make the very common mistake of trying to delve into the minutiae of law (evidentiary v. ultimate facts; cases at law v. cases at equity) and filing lots and lots of pleadings, as if you think by doing so you can somehow get into the Secret Society you by turns deny or decry. You simply do not have time to learn the details of business law, and you will bore, exasperate, or otherwise lose your judge by flooding the record with unnecessary pleadings. Now, I realize that since you’re not a lawyer, you don’t really know which pleadings are necessary and which ones aren’t, so you’re rightly covering your ass by filing, but it still is a major red flag to me as a lawyer, and groan-inducing to a judge. One of the pitfalls for a non-lawyer tackling legal subjects is that you don’t know – how could you know? – what distinctions are absolutely crucial, and what distinctions are irrelevant. As I said, I will absolutely take correction from any and all Cali lawyers, but as far as I know or have ever experienced, “ultimate v. evidentiary facts” and “law v. equity” are in the “probably irrelevant” category – unless those distinctions have been specifically put at issue in your case – in which case, delve away.

(2) Your communication style tends to be very dense and you assume a level of interest in the point you will eventually make that IMO you can by no means count on. You can count me as another who had to read your OP multiple times to figure out what the heck you were asking, much less why. You haven’t shared the facts of your case and I’m not asking, but IMO a related mistake commonly made by pro se litigants is to assume the reader knows the facts and/or the circumstances as well as you, the litigant, do in your head, having lived through them. To be brutally honest, your brief will not be particularly important to the judge, it will be one of hundreds he – or more likely his clerks – slog through that week. You must present your case as if to a person who doesn’t know the first thing about it, because he doesn’t, and has no reason to care about it, because he doesn’t. You must tell him *why[/ki] he should care. I’m not saying this to bust your chops but to suggest that at a minimum you have someone take a look at your brief to make sure it is concise, logical, and coherent, becuase if it’s not – you lose.

(3) It continues to piss me off that you ask for legal advice but then act like all lawyers are shysters who discourage you in order to intentionally keep laypersons out of their sandbox – as opposed to discouraging you because they are fairly warning you that you have bitten off a HUGE chunk and you are unlikely to be able to swallow it and would be better served to get some help. And then having thrown the usual amounts of brickbats and dismissing anything you don’t want to hear – you still ask for help! And idiots like me reply in good faith, so I guess which of us has the greater rocks in their head is up for debate. The way you portray my profession also pisses me off: Your lawyer is an idiot; their lawyer is an inveterate liar, the judge is terrible; the system is fucked. It’s everyone’s fault but your own, when the reality is that if you have lost, and if you continue to lose, it will be because you had a bad case, or you mishandled it. But don’t worry: If you don’t get the result you want, you will at least have a great story about how The System shafted you.

89

I should have said in the second to last sentence “It will probably be because you had a bad case,” so please add that qualifier.

90

Thanks, Jodi. Needed to be said.

91

Way to go Jodi!

92

Keep your brief short. 10 drafts minimum, read it 100 times. Any college graduate should understand it. Use the California Style Manual http://west.thomson.com/productdetail/6340/12231786/productdetail.aspx and CEB’s Civil Appellate Practice guide. http://www.ceb.com/CEBSite/product.asp?catalog_name=CEB&product_id=CP32430&Page=1 You have already consulted Rutter Group, but cross check everything with CEB and vice versa. On appeal designate the entire Clerk’s file as the Clerk’s transcript and the entire Reporter’s Transcript, regardless of the cost.

93

Good luck. And congrats if they are in order.
Just had to observe that I’ve been a practicing lawyer for 22 years (tho in fed appellate law). I generally consider myself pretty quick at sizing up the main points of diverse legal matters, and tho I admit I have not studied every word of your posts, I’ve got no idea what you are talking about. So you are probably better off than you would be if I were representing you! :stuck_out_tongue:

94

[quote=“legalsnugs, post:84, topic:484669”]

Here’s my point.

I asked the judge for a statement of decision. Because her judgments are a mess. (Not my opinion…the opinion of 6 lawyers total who have read them.) Asking for a getting such a statement, no matter what it says, is helpful. Per Bender:

The law regarding it says:

Hmmm. When you are new to this, the above doesn’t really register. Gotta dig deeper.
I studied the annotations on the statement of decision law = 177 pages. It is extensive. It says things like:

And so on, and so forth.

Now, I’m very familiar at this point with the fact that pretty much every law, if you look at the annotations, has cases that appear to be, and even are, in total opposition. It is because this is true that I have gotten into the habit of reading every single case that says anything I find remotely pertinent to make sure I understand precisely the context. (And that very much includes things that seem to go against me; I make it a point to find all the holes in my arguments so I can plug them. What I have experienced is that I am braced for something that really could be an issue…and no one else brings it up.)

I’ve also learned not to trust the folks who do the annotations…they are not always correct in the way they re-state things. Go to the source.

Furthermore, I will go read the citations within the opinions if the opinion is using a citation. I will trace all the way back to the original case and read that one.

And there is more in the annotations that is very clear to me than is unclear. It’s just that I wanted a better understanding overall.

Anyway, having said that, I was seeking a discussion regarding all these legal ideas so that I would have as firm a grasp as possible in preparing the appeal. Outside of my centerpiece issue of the judge’s interpretation of a particular statute, other issues have to do with the fact that there is no evidence whatsoever for the things that she “found”, since she “found” things that were completely erroneous, not just a finding for plaintiff against me, often she completely misunderstood and found things that we didn’t even disagree about.
Does that make it any clearer?

95

I do that outside the courtroom.

Well, the plaintiff had planned to get control of our business via his attorney bamboozling the judge into putting up for sale auction-style. He got exactly what he wanted, but I outbid him. That wasn’t the plan. Once that happened, what the Plaintiff wanted became 100% vindictive. Hurt Stoid.

He has been incredibly self-destructive and the truth is, it’s broken my heart. Seriously. All the anger I have, it’s directed at the judge, his attorney, and the receiver (who really surprised me by being a shocking dick.) I get angry at the Plaintiff, but this is a man I loved more than I’ve loved any human being in my life. Healthy or not, we are 15 years apart in age, we were together for 10 years, and there is no question that I have a very maternal kind of love for him. So, like a mother, it doesn’t matter how terrible he is to me. I can’t stand seeing him hurt himself so much and you have no idea how much I’ve wanted to reach out to him…but I couldn’t. I can’t.

It was the strangest thing on the first day of trial to see him with his new girlfriend. I had never seen them together. About 3 minutes after I got over the impact, I was, sincerely, flooded with happiness for him. She was just what he always wanted, it was right, I was glad.

My family and friends hate him for me. I just can’t.

96

Thank you very much. You have addressed it more thoroughly and helpfully than anyone else. I appreciate that.

Paid in full.

Turns out, that’s it precisely. The facts and the law were pretty much completely on my side. It has been apparent for some time that she didn’t think that doing it according to the law was going to be fair, so she got creative. Very creative. Repeatedly.

Thank you!

Thank you again!

Just looking to avoid any traps. This is but a sliver of what I’ve been studying. As I said in my earlier post, I’ve been very focused on finding the flaws in my arguments and law. Most of the time when I’m researching and studying, I’m doing so from the mindset of trying to take it apart. Learning as much as I can is helpful to that end. I also don’t want to make an enormous gaffe, so I want to make sure I understand everything that will be in play as thoroughly as possible.

I also find that I am simply interested. I find I enjoy it.

Everything I’ve done has been focused on a goal.
First I tried to talk her out of her judgment altogether, by filing multiple motions in the alternative. (that one I had a lawyer holding my hand the whole way)

Then I filed the motion for the stay, trying to simply act on the law as it was written.

Then, denied, I filed a petition for writ of mandate to stop the sale of the business.

Then (denied, but only in the standard way, no opinion) I filed my first appeal

Then I was forced by the receiver and the plaintiff to fight over whether I had a stay or not.

Then I responded to the Plaintiff’s objectionst to the receiver’s request to pay certain things.

Then I filed a request for receiver instructions, specifically to gethim to stop trying to evict me frmo a home I own.

Then we had the accounting trial

Then I filed a request for statement of decision and objections to the judgment, and a brief arguing against an argument the judge came up with for giving him money.

A number of declarations were in there as well, responding to accusations and statements by the receiver and plaintiff.

To my mind, not a pointless piece of fluff in the bunch.

Count on it.

(3) Your lawyer is an idiot; their lawyer is an inveterate liar, the judge is terrible; the system is fucked. (etc., etc.)
[/QUOTE]

My lawyer was not an idiot, in fact, I was pretty clear that he’s actually pretty hot stuff. He just did not anticipate that this was going to go down the way it did. It knocked him for a loop.

I have since met several lawyers who have gone up against the P’s atty: it was one of them who first called him “an animal” - he’s like every bad nightmare joke about evil scheming disreputable win-by-any-means-available caricatures you’ve ever encountered. Just for giggles, I combed through a random declaration of his that ran 32 paragraphs. There was exactly one paragraph that was completely free of blatant lies, mischaracterizations, or gross distortions. It’s so egregious it would be funny if it hadn’t done so much damage.

The judge IS terrible. Again, I’ve gotten feedback from many sources that I’m not imagining things.

The system? Well, it’s been an enormous letdown, let’s put it that way.

As for the rest, I’m sorry you take it so personally. I don’t think I’ve made blanket condemnations of the profession as a whole, apart from a remarkably lock-step thing that’s evident in this thread about viewing pro per litigants as clueless, no matter what, and a bizarre insistence on saying “get a lawyer” no matter what. I would get a lawyer if I could afford a lawyer. I can’t afford a lawyer. When I say “can’t afford” it’s not a euphemism. Telling me to get a lawyer is almost cruel, given that it is IMPOSSIBLE. I am deeply fortunate to know three lawyers who are willing to listen and give me feedback, that’s way more than most people could ever hope for. And they have all been crystal clear with me that it is because they respect me, they respect the work I’ve done, and they feel confident in giving me that feedback and guidance.

Thanks again.

97

I’ve got the whole CEB right here, along with Bender, a ton of Witkin and Cal Jur.

And what money I’ve been able to borrow and scrounge has gone right into the reporter’s pockets for months. I am very attached to transcripts… I need to be when so many keep claiming that the Judge said X…she said Y, I said A, but they claim I said B. No worries there.

98

Thank you, Shayna. I am being “second chaired” behind the scenes. One of the three attorneys is technically on a kind of retainer. I didn’t know him, he’s the most experienced of the three with business and appeals; my friend introduced us. He wouldn’t deal with me at first, but I wore him down, met with him for about 2 hours, he went over the verdict teanscript and the judgment and was just blown away. He actually happens to know the judge, they sat on some board together, and he has a rather low opinion of her. He’s also one of the lawyers who has been up against the plaintiff’s attorney and he views him exactly the way I do.

Anyway, since that first meeting, I gave him a check for 2K in exchange for essentially being available to consult. I email him when it’s something major, hhe’ll answer if he has anything to offer, which he often does not, he put his name on my supersedeas petition, which was huge, and he’s promised to review the brief.

So I feel like I’ve got just enough backup to keep from stepping in it too hard.

99

My bad.

100

Best of luck. I have no legal background, but just wanted to throw in 2¢.

I was the defendant in a claim and delivery case. No trial or attorneys involved on either part, just me and the plaintiff before a magistrate. Thru my own admitted careless, I had lost the property the plaintiff was seeking to have returned.

The plaintiff maintained that I was still in possession, but withholding it. Despite my offers to replace the property, the plaintiff was insistent upon reclaiming the original—which I no longer had.

Judge sided with the plaintiff on the judgment (not a surprise). However, what was bad was that he also ordered return of the property (which no longer existed), payment of claimed value ($2000!), and an authorization to search my house to reclaim the property (!).

Based on some questions to some legal types (none of whom were actually hired or retained), their general opinion was that that amount of damages seemed to be in contravention of state law as well as case law (“claim and delivery” damages are supposed to be actual value). However, they also said that actually hiring someone to research the case and represent it at an appeal would probably cost more than the amount of the judgment. So there I was.

Oh, and the property I was refusing to let go of: ten family photographs–which I had had copied and touched up, so that the copies were in much better shape than the originals. “Actual” or “intrinsic” value would seem to be less than $2000, it would seem.

Anyway, did not want to hijack. Just to affirm that, yeah, I can relate to a judge’s decision seeming to be at odds with what the law says, and (in my case) not being able to do beans about it.