Wednesday, November 28, 2007

Kashmiri v. Regents of the Univ. of California (Cal. Ct. App. - Nov. 28, 2007)

I mentioned this opinion earlier this month, in a post that was incredibly short and yet perhaps the one with the most interest ever to a select group for former UCLA and Boalt Law graduates. Because, as they say, no honey is better than money.

But, today, Justice Haerle (the acting presiding judge) amends Justice Lambden's opinion. Not to do anything that affects the merits, thankfully. But that instead serves only to add a paragraph that's gotta be a blow to the ego of the attorneys for the Regents -- Howard Rice lawyers Jerome Falk, Ethan Schulman, and Keith Kessler. The amendment (in part) adds the following to the end of footnote 12:

“In its petition for rehearing the University claims that it did make this argument in the lower court and it points to the pages in the record where this argument was raised. We note, however, that the University did not cite to these pages in the record when arguing this issue in its opening brief before this court. The University also never addressed in its reply brief respondents’ argument that it had waived this issue because it had failed to raise it below. We cannot be expected to comb through more than 1550 pages in the record to determine whether the University did in fact raise this argument. By failing to address respondents’ argument of waiver, the University forfeited this issue.”

Ouchie. I mean, it's one thing to lose a high-profile, multi-million dollar class action lawsuit. Which Howard Rice did. It's another thing to have the Court of Appeal then add to the defeat by responding to your petition for rehearing by telling everyone that both your opening and reply briefs were substantively inadequate.

That's not what you want on your firm's recruiting pamphlet for the upcoming year, I imagine. Or what you want clients to see when they're thinking about retaining you for future appellate work.

I bet the Regent's counsel wished -- in retrospect -- that they hadn't filed that petition. Ouch.