Monday, April 11, 2022

Mireskandari v. Edwards Wildman Palmer LLP (Cal. Ct. App. - April 8, 2022)

Some lessons you can learn from this opinion:

(1) Be wary about taking on lawyers as your client. If you lose, you might well be the next person they sue.

(2) The lesson in (1) is especially true if your client is -- as the trial court described the attorney/client here -- "a raging bull" who wants to file litigation that might well not succeed.

(3) The lessons in (2) and (3) are true even if you tell clients that they might not succeed.

(4) The lessons in (2), (3) and (4) are even more true if, as alleged here, you didn't tell the client that the other side might file an anti-SLAPP motion and you might be required to pay their attorney's fees. Even if you did, in fact, tell them that, make sure you tell 'em in writing. Because if they deny that you told them, you've got to face a trial.

(5) If you're the appellate lawyer trying to solve the mess resulting from (1) through (4) above, be sure to follow the rules on appeal. That's true even if you end up not being sanctioned, because, at a minimum, you don't want to have to read a published opinion that says this about you:

"However, while we have declined to impose sanctions, we must emphasize that we did not come to the point of considering them in a haphazard or spontaneous manner. (See Alicia T., supra, 222 Cal.App.3d at p. 885.) Notwithstanding appellate counsel’s contrition, her explanation implicitly admits that, faced with strained office resources and this court’s notification that no further time extensions would be granted, she made the conscious decision to file an oversized opening brief and 14-volume appellant’s appendix that she knew violated the applicable Rules of Court. The effect of that decision, as counsel must have known, was to shift the burden onto opposing counsel and this court to navigate a materially deficient appendix without the aid of proper record citations."

(6) Perhaps this goes without mention, but I'll mention it anyway: Don't just cut-and-paste huge sections from your trial court briefs. Ever. Even more so when you're filing an overlength brief. The Court of Appeal doesn't like that, and you don't want to be reading something like this:

"That decision is especially vexing, given counsel’s corresponding decision to include almost 30 pages of argument in Mireskandari’s oversized brief that appear to have been simply copied and pasted from his post-trial motions. To be sure, forfeiture rules generally bar an appellant from challenging rulings on grounds that were not raised in the trial court, but that does not give an appellant license to throw every argument from his post-trial motions into his opening brief without making the slightest effort to acknowledge our presumption of correctness or to explain why the trial court’s rulings constitute reversible error. “The public fisc is limited, and justices and support staff must carefully monitor and utilize their resources.” (Alicia T., supra, 222 Cal.App.3d at p. 885.) If Mireskandari and his counsel did not have the time or resources to do anything more than copy and paste arguments from previously drafted motions, they should not have placed the burden on this court to craft an opinion rejecting those arguments."

(I'll mention, by the way, that the appellate counsel who's getting slammed isn't some schlub, either; she's Becky James at Dykema Gossett, a certified appellate specialist -- but working out of Texas.)

(7) Finally, while we're on the subject, I'd have thought this too went without mention, but when you prepare the record, put in the index and appendix in chronological order. That means by date. Oldest first. Seems obvious, right? But look what happens here:

"We will not recount counsel’s detailed explanation of the “significant and unexpected obstacles” her office faced in completing the appendix and drafting the opening brief, including the unprecedent hardships the COVID-19 pandemic imposed on her office and staff. [Footnote follows:] One specific explanation, however, bears attention. With respect to the reverse chronological arrangement of the index and appendix, counsel notes the applicable rule provides only that appendix documents must be “ ‘arranged chronologically’ ” (rule 8.144(b)(2)(C)), but she emphasizes it “does not specifically indicate in which direction the chronology should proceed.” This, in our view, is not a reasonable reading of the rule and, in any event, the decision to use a reverse chronology made little sense in this case. Any practitioner who has read an appellate record should recognize there is a practical reason the rules mandate a chronological arrangement. A chronological arrangement allows the reader to move from the end of one record to the beginning of a subsequently-filed record—e.g., from motion, to opposition, to reply, to ruling. Counsel’s use of a reverse chronological arrangement requires the reader to retrace back through a record, then back through the subsequently-filed record, to find the beginning of that subsequently-filed record. That process is especially time consuming when the appendix spans over 9,700 pages and includes well over 100 documents, many of which are not separately indexed. Moreover, because counsel included appendices from earlier writ petitions, which were arranged in the appropriate chronological order, there are parts of Mireskandari’s appendix that are in chronological order and parts that are reversed. And, because counsel did not separately index the documents embedded in the writ petitions, many of those documents have no chronological relationship (proper or reversed) to other documents in the appendix. Suffice it to say, counsel’s decision made reviewing the appendix a needlessly frustrating and time-consuming effort."

Learn from the hard-learned lessons of others.

Here's seven good ones for the day.