Sean Thomas Lobb has Tips Learned While Clerking in Orange County in the November OC Lawyer magazine. Some takeaways:
- DO: Cite well-reasoned decisions from the same federal district court – even UN-published decisions!
- DON'T: Use legalese. It's like biting into the frozen center of a microwave burrito.
- DO: Make focused, targeted arguments to tentative rulings. And answer judges' questions directly.
- DON'T: Flub the local rules, especially relating to discovery motions.
https://lnkd.in/gCPy-6H
I have a new short video up explaining what an appellate attorney is, and why you should bring an appellate attorney on to your litigation team. More here.
The president of a multibillion-dollar gas company, Mark Hazelwood, was accused of participating in a manual-rebate scheme by shorting customers of purchased diesel fuel and cooking the books to avoid detection. The government had a key piece of evidence. It had an audio recording of Hazelwood. The government's recording of Hazelwood didn't contain anything that suggested Hazelwood participated in the fraud. But the recording did depict Hazelwood making truly odious racist statements. (As a taste, it revealed Hazelwood as a David Allan Coe fan.)
Defense counsel wisely confirmed he did not wish to open up issues of character.
So, the government came up with this clever idea. The government asked a witness whether Hazelwood was a "good businessman." He was. The government then moved to admit the offensive recording as evidence that, in fact, Hazelwood would and did jeopardize the company's reputation by making the offensive statements, tending to rebut the evidence that he was a "good businessman."
The Sixth Circuit reversed. United States v. Hazelwood, Nos. 18-6023/6101/6102 (6th Cir. 2020). The Court asks a simple question: Do the statements make it more likely defendant committed fraud? No. Do the statements make it more likely the jury will convict? Yes. Henry Ford, after all, was an excellent businessman, despite being a rabid anti-semite. Fortunately, character flaws do not have a natural correlation with business judgment.
That is why we have rules against character evidence.
The Sixth Circuit explains the other ways character evidence may be properly admitted, such as "proving motive, opportunity, intent," etc. under Rule 404(b)(2). But those did not apply here.
The error in admitting the evidence was prejudicial error because the government's evidence "was not ironclad," and the error left the conviction "in grave doubt."
Judge Donald dissented. Judge Donald thinks Hazelwood's theory that he was too good a businessman to participate in the fraudulent scheme opened the door to the recording of his racist and sexist statements. And that the recording could be admissible under Rule 404(b). And that "jury trials are not antiseptic events," and so even if a close call, the evidentiary ruling does not require reversal.
Do not take the common-interest privilege for granted if you represent a client in multiple-party litigation.
In Finjan, Inc. v. SonicWall, Inc., Case No. 17-cv-04467-BLF (VKD), 2020 U.S. Dist. LEXIS 128725, at *3-4 (N.D. Cal. July 7, 2020), Finjan held board meetings attended by a representative of Cisco, an investor who had a contractual right to observe Finjan's board meetings. Finjan claimed privilege protection based on the common-interest doctrine for documents disclosed during its board meetings. But the court rejected the common interest argument. The court held that Cisco’s status as an investor right a right to observe board meetings "did not create a common legal interest.” Id. at *11. Finjan and Cisco also did not anticipate joint litigation. Id. Instead, Finjan's “voluntary disclosure waived whatever attorney-client privilege otherwise attached to these materials.” Id. at *12.
But before you rush to create a joint-defense agreement to cover your client, consider a few things.
A joint-defense agreement should always be in writing and reviewed with and signed by the client. United States v. Stepney, 246 F. Supp. 2d 1069, 1080 (N.D.Cal. 2003). An oral joint-defense agreement might be enforceable, but I would not count on it.
But when you consider a joint-defense agreement, beware that the Ninth Circuit has found this "establishes an implied attorney-client relationship with the co-defendant," which "can also create a disqualifying conflict." United States v. Henke, 222 F.3d 633. In Henke, the agreement apparently did not contain a waiver of the right to seek disqualification of counsel or the right to object to the use of joint-defense materials.
But see Stepney, 246 F. Supp. 2d 1069 (joint-defense agreements merely create a duty of confidentiality, which is limited to information actually shared within the group; the agreement does not create a "true" attorney-client relationship).
The Stepney court took a uniquely proactive stance, requiring joint-defense agreements to be in writing and submitted to the court for review in camera prior to going into effect.
Also note that the joint-defense doctrine is not a standalone privilege. Rather, it merely extends an underlying privilege. Thus, when creating a privilege log, never list the common interest doctrine or joint-defense doctrine by itself. Instead, assert the underlying privilege or work-product doctrine, followed by the common interest doctrine. See OXY Resources California LLC v. Superior Court (2004) 115 Cal.App.4th 874 at 894 (compelling production of documents asserted to be protected solely by the “common interest privilege).
Moreover, where the common interest is not obvious (such as where parties who shared privileged communications based on their “common interest” are adversaries), courts may scrutinize claims that the documents were shared to further a common legal purpose and may even order in camera review.
Last but not least, the privilege does not extend beyond the areas where the parties' interests overlap. “[T]he attorneys do, at a minimum, need to be ‘engaged in maintaining substantially the same cause on behalf of other parties in the same litigation.’” United States v. Gonzalez, 669 F.3d 974, 980 (9th Cir.2012).
Be aware of the limits of the joint interest, and thus the limits of the protection.
In fairness, I have seen much worse arguments than this.
On behalf of his AirBnB client, attorney files suit against AirBnB employees in McCluskey v. Henry (D1d3 Nov. 2, 2020) no. A158851, but the case is stayed and sent to arbitration at AAA. Through a clerical error, AAA doesn't acknowledge receipt of defendants' arbitration fees, and administratively closes the case. AAA then acknowledges the error and asks plaintiff if she wants to reopen the case.
Instead of responding in the affirmative (or at all), attorney rushes back to court and files a motion to lift the stay and resume litigation. The court denies it. Defendants file a motion to sanction attorney, arguing the motion to lift the stay was frivolous and in bad faith, and the court grants that, in the amount of $22,159.50.
Attorney appeals. Incidentally, client appeals, too, but she has no standing regarding the sanctions award against attorney, and the order refusing to lift the stay pending arbitration is not an appealable order because it is not a final judgment.
As mentioned, I've seen attorneys make worse arguments than this. But on appeal, attorney's arguments did not get a lot better. He argued the trial court lack jurisdiction to sanction him in a matter subject to arbitration. (Recall: attorney had filed his frivolous motion in the trial court.) Attorney argued he didn't know AirBnB was paying its employee-defendants' fees, and that attorney cannot be made to pay that because the defendants did not "incur" them. And attorney argued defendants didn't really need to file an opposition, and didn't "prevail" when his motion was denied. And more like this.
The First Appellate District states that attorney's appeal "comes right up to the line of sanctionable conduct" by "forcing us to examine [his] myriad arguments before rejecting them as having no factual or relevant legal support." The Court notes that arguments such as these cause a "'useless diversion of this court's attention' from '[o]ther appellate parties, many of whom wait years for a resolution of bona fide disputes.'"
But the Court mercifully refrains from sanctioning attorney here, as appellate sanctions "should be used most sparingly to deter only the most egregious conduct," citing Marriage of Flaherty (1982) 31 Cal.3d 637, 650-651.
And that, attorney takes away in a published decision.
In Case You Missed It: Family Law Appeals: The Cal. Appellate Law Podcast Episode 6
Appellate attorneys Jeff Lewis and yours truly discuss family law appeals in the latest episode of the California Appellate Law Podcast. In addition to some nuts-and-bolts procedure, we discuss:
- Hiding Bitcoin from your spouse is a righteously bad idea, and claiming you don't have to deliver her half of the Bitcoin because it was hacked is not a winning argument. In re Marriage of DeSouza (2020) 54 Cal.App.5th 25.
- In a spousal support modification request, the court shifts the burden of proof to the party opposing the request. In In re Marriage of Hein (2020) 52 Cal.App.5th 519, 545–546, the Fifth Appellate District held father did not satisfy his burden by relying on expenses listed in his businesses tax returns. (Look for this case to be cited in civil appeals seeking to shift the burden of proof.)
- We also discuss Conservatorship of O.B., which we covered previously here and here.
We hope you will tune in!
Originally posted here.
Insidious, or Invidious?
Bryan Garner has this tip to help you inveigh correctly:
Insidious = (of people and things) lying in wait or seeking to entrap or ensnare; operating subtly or secretly so as not to excite suspicion—e.g.: “Many Indians still fear that economic liberalization will bring with it cultural imperialism of a particularly insidious kind—that ‘Baywatch’ and burgers will supplant Bharatanatyam dances and bhelpuri.” Shashi Tharoor, “India Poised to Become an Economic Superpower,” Wash. Post, 10 Aug. 1997, at C1.
Invidious = offensive; repulsive; arousing ill will or resentment. This term is often applied to discrimination, as it has been for more than two centuries—e.g.: “The example familiar to us is segregation. In 1896, the justices said there was nothing invidious about separating black people unless they chose to see it that way. That pretense . . . could hardly be maintained in 1954.” Anthony Lewis, “Justice Spoke to Our Better Angels,” Times-Picayune (New Orleans), 4 Aug. 1997, at B5.
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