I'm going to give a quiz. As well as forthrightly admit that, until today, I would have only gotten the first of these two questions right.
Fact Pattern: An opinion by the Court of Appeal recites an argument that one of the parties makes on appeal and begins its response thereto with the following sentence: "We are nonplussed."
Question No. 1: Did that party win or lose the appeal?
Question No. 2: Who wrote the opinion?
The answer to the first question is pretty obvious. When the Court of Appeal is directing phrases like "We are nonplussed" in your direction -- whether the opinion's published (as here) or not -- you can be pretty sure that you're going to end up losing. As Respondent indeed does here. It's also an indication that your counsel may not have done a successful job putting a sympathetic face on the appeal and/or argument at issue. The use of the term "nonplussed" suggests a degree of frustration. That's not your goal.
The answer to the second question will be obvious only those on the Court of Appeal and/or intimately familiar with it. The Court of Appeal has used that phrase in only five opinions. Every single one of which was authored by the same jurist: Justice Richman. Moreover, its seems that only recently has be begun losing his plusses. Justice Richman joined the Court of Appeal over eight years ago, but the first time he used that phrase was two years ago -- in two different opinions -- and then used it again last year and, thus far, has used it again in two different opinions in 2014.
The latest people to nonpluss Justice Richman are insurance adjuster Craig Hansen and his attorneys at Horvitz & Levy ("Appeals Are What We Do") and Weston & McElvain ("Building a Reputation"). They lose the appeal and get a bit of sass directed their way as a bonus.
So let's work on getting James "Nonplussed" Richman his mojo back, people. Make him happy. Make arguments that make sense. Or at least aren't (actually and/or perceived to be) silly.
