Who should argue before the Court of Appeal: the appellate or trial lawyer?

Should the lawyer with the most knowledge of the case or the one who has the most appellate experience appear before the Court of Appeal?

One of the questions most frequently asked of appellate practitioners is whether the trial lawyer or the appellate specialist should conduct the oral argument.  The answer might appear obvious —  the appellate attorney — but there are advantages and disadvantages to having either the trial attorney or appellate attorney at the lectern.  

In making this decision one should recall what oral argument entails.  Such an argument requires extensive preparation because it must not be a regurgitation or even a summary of the brief the panel of justices has already read.  Rather, such an argument should focus on the key argument — and, hopefully, the various issues briefed in writing may be distilled into an argument in the singular — upon which the decision should rest.   Preparation is also necessary to be able to quickly rebut arguments made by your opponent as well as to be able to decisively answer questions posted by the court. 

Notice of the argument may be sent out eight to 12 weeks prior to the actual date. [1]  This ordinarily occurs after the parties have given their estimate of how long the argument will take, with each party providing their own estimate.  While there is a maximum amount of time, often 30 or 45 minutes, which may be allotted, there is no “average” or “default” amount.  

That being said, 10, 15, or 20 minutes are common estimates.  Bear in mind that if one reserves time for any rebuttal to your opponent’s argument, these minutes are included in your total time estimate, meaning rebuttal time will reduce the amount of time you have during your initial argument.

It may not be possible to hire someone to conduct the argument

Looking at this from a practical view, there may be financial concerns involved, as a client who may wish to pay to have an appellate brief written may not be able to pay for the cost of having the appellate attorney travel to, and prepare for, an appellate argument.  

On the other hand, the trial lawyer may have a scheduling conflict which may make it impossible to prepare for the argument and/or travel to attend such.  The worst-case scenario occurs if a trial lawyer without sufficient appellate experience who has hired an appellate lawyer to brief the matter then plans to argue before the Court of Appeal but is prevented from actually preparing by an unexpected emergency that arises in another matter.

Ethical implications to consider in deciding who should argue the appeal

This brings us to ethical parameters which may inform the decision of trial counsel to seek assistance. California Rules of Professional Responsibility, rule 11, sets forth the minimum competency required in a particular matter, explaining that such competence may be met by “professionally consulting another lawyer whom the lawyer reasonably believes to be competent. . . or referring the matter to another lawyer whom the lawyer reasonably believes to be competent.”  A lawyer who does not meet or have the time to attain minimal competence may therefore meet this standard by referral to a lawyer who has.

Consider whether the presence of the trial lawyer will constrain the arguments which may be made before the appellate court

The cost of hiring an appellate lawyer to conduct the argument may be money well-spent for a number of reasons, some obvious and some less so.  As but one example, the appellate practitioner may be much better suited to making an argument including an admission about what occurred at trial, such as an admission the trial lawyer may have missed a deadline coupled with an argument that there was no real prejudice from this error.   While the trial lawyer could theoretically make the same admission, given human nature and the healthy ego many lawyers possess, it is less likely they will do so.

Perhaps the best approach is to have both trial and appellate counsel attend, with the appellate lawyer arguing the legal issues and trial counsel present but silent at the counsel table in front of the justices.  This gives the impression the trial lawyer takes the matter seriously enough to both hire appellate counsel and attend the hearing.

Further, while appellate counsel should be prepared to argue the case without any “prompts” from the trial lawyer, it remains the trial lawyer’s presence means it is possible — if the need arises — for the appellate lawyer to discreetly confirm a key fact from the trial lawyer. [2]

1 - Because most appellate courts do not request input from counsel as to available dates, the argument may be set on a date conflicting with your most ambitious trial to date, daughter’s wedding, surgery, etc.  A prompt call to the Clerk of the Court should inform you as to whether or not the Court of Appeal will entertain flexibility in scheduling the argument.   Being prepared with alternative dates which are feasible for all other counsel will smooth this process.

2 - One should not count on being able to interrupt the argument to confirm a key fact with trial counsel.  Still, I have observed appellate counsel who has been asked a very specific factual question as to what occurred at trial then politely ask the appellate panel whether they may briefly request confirmation from trial counsel sitting adjacent to the lectern.  One panel I observed answered in the affirmative and trial counsel was permitted to nod yes and confirm this fact to appellate counsel.

Triable Issue as to Whether Landowner Caused Exposure to Fungi (Beebe v. Wonderful)

Defendants not entitled to summary judgment as to "substantial factor" causation because testimony of experts created triable issue as to whether contractor's employee was harmed on premises

The Fifth District has overturned a grant of summary judgment in favor of a landowner for injury to an electrical contractor’s employee from the fungi such as Histoplasma Capsulatum. (Beebe v. Wonderful Pistachios (June 6, 2023) F083502.) Plaintiff and appellant Beebe (“Beebe”) worked for an electrical contractor performing extensive work on the premises of defendant and respondent Wonderful Pistachios (“Wonderful”) and was therefore allegedly exposed to a fungus related to bird feces on a constant basis.  Specifically, Wonderful and/or its agents engaged in “hydroblasting” and other clean-up which caused the bird feces to be airborne, which is potentially dangerous because Histoplasma Capsulatum is a soil-based fungus that feeds upon bird feces.  This feces was literally everywhere, covering almost every surface in a “pole barn” area where Beebe performed his work lasting weeks at a time during which time Beebe lived in an RV near the Barn.  Beebe therefore alleged the fungus caused his Histoplasmosis and resulting surgery:  

The toxic substance(s) were allowed to accumulate and become airborne by Defendants’ actions and/or omissions herein. The substance(s) contained fungi including, but not limited to, Histoplasma Capsulatum. Plaintiff is informed and believes and based thereon alleges that when inhaled, said substance(s) caused Plaintiff’s lung infection which spread to other parts of Plaintiff’s body.” The complaint further noted: “On or about November 24, 2015, Plaintiff reported to the hospital due to symptoms including, but not limited to, weakness and numbness in his extremities. Plaintiff was admitted to the hospital and imaging scans were performed. Subsequently, lesions were discovered on, among other locations, Plaintiff’s brain, such that Plaintiff required surgical intervention. The lesions were biopsied in or about February 2016. Plaintiff was then diagnosed with Histoplasmosis. (Id., pp. 3-4.) 

Wonderful and the other defendants then brought a motion for summary judgment, arguing plaintiff could not provide their actions were a “substantial factor” in the harm, arguing the fact Beebe presented with symptoms sometime after exposure to the fungus at their location indicated Beebe might have contracted Histoplasmosis from exposure somewhere else.  The motion was granted by the Hon. David R. Lampe of Kern County Superior Court and Beebe timely appealed.  

Beebe explained a plaintiff does not have to preclude all other causes to bring a claim for “substantial factor” before the jury

Justice Smith wrote the opinion for the Fifth District and explained there was in fact a triable issue as to whether the defendants were the “cause in fact” of the harm.  Beebe distinguished the prior case of Miranda v. Bomel Construction Co., Inc. (2010) 187 Cal. App. 4th 1326, upon which the trial court relied.  Miranda upheld summary judgment in favor of the defendant from an employee’s injury due to “valley fever” and the alleged exposure to the endemic Cochi fungus, finding it relevant the fungus could be carried over large areas by strong winds.  The Beebe court noted that here, by contrast, there was evidence supported a much stronger inference the employee was exposed to the fungus at Wonderful’s premises:

Here, Beebe adduced ample evidence showing that WP&A’s Firebaugh Facility was on a migratory route for flocks of swallows that had been nesting at the Facility for years, particularly in the pole barn. Hundreds of swallows would nest there for long periods every year, including the entire time Beebe worked at the Facility. There can be no doubt that the presence of the birds was significant and problematic, given that WP&A personnel made various attempts (some ill-advised) in the relevant time period, to prevent the birds from roosting in the pole barn and other areas of the Facility. 

The evidence also showed that the accumulation of bird feces was an extreme problem at the Facility, with some spots having layers of feces an inch or two thick. The accumulations interfered, at times, with the work the Braaten electricians [such as Beebe] were performing at the site (Beebe himself had to personally remove bird droppings at times). Although efforts were made to dry sweep or use leaf blowers to clear feces off the floor of the pole barn, the feces were simply deposited on the surrounding soil and not removed from the site. Beebe testified he was not exposed to concentrated accumulations of bird feces anywhere other than the Firebaugh Facility. (Id., pp. 30-31.)

Beebe stressed that in order to prove factual causation a plaintiff must prove the case of the harm with “reasonable probability,” meaning factual causation involves “reasonable medical probability.” (Id., p. 24; emphasis added.)  A plaintiff does not have to prove that no other causes could have contributed to the harm, and, consequently, does not have to provide factual causation with “certainty.” (Id.)

Crucially, the appellate court found the trial court had improperly excluded two of Beebe’s experts on the grounds their testimony was “speculative;”  Even though a trial court’s ruling on evidentiary matters is viewed through the lens of an “abuse of discretion” standard, the trial court’s ruling did not survive analysis under this standard and plaintiff’s expert’s conclusions should not have been excluded.  Therefore, the appellate court considered the declarations proffered by both sides, which declarations created triable issues of material fact as to the factual cause of Beebe’s harm. 

Lessons for practitioners when dealing with issues of causation raised in a motion for summary judgment

Such motions often become a “battle of the experts” to the same extent as would a trial.  For example, in Beebe the experts disagreed on a number of crucial issues, such as the prevalence of injury from Histoplasmosis in the area or whether exposure to Histoplasma Capsulatum would ordinarily cause symptoms immediately or if they might present later. 

Beebe thus illustrates how difficult it is to obtain summary judgment based upon a “cause in fact” argument where the defendant alleges there are other possible causes of the harm such that the defendant’s conduct was not a “substantial factor” in the harm.  Which possible causes were more likely to be the actual cause of the harm is ordinarily a triable issue the parties address at trial by the use of expensive — and sometimes difficult to obtain — expert witness testimony.

Sanctions May Be Imposed for Frivolous Appeal Intended to Delay (Champlin v. Avery)

 

Plaintiff is sanctioned $15,000 for filing an appeal with no merit in an attempt to delay the removal of a mechanic’s lien

The Second District, Division Six, has sanctioned counsel for appellant Avery and his counsel of record, Steven Slavitt, $15,000 for filing and maintaining a frivolous appeal designed for the purpose of delay. (Champlin/GEI Wind Holdings v. Avery (June 2, 2023) B319563.)  Plaintiff and respondent Champlin/GEI Wind Holdings (“respondent”) entered into an agreement to develop a wind energy project in Oahu.  Appellant and defendant Keith Avery (“appellant”) was to receive both a return on capital and a “monthly services fee:”

Appellant, acting through West Wind Works, LLC (3W). . . and respondent entered into a Development Services Agreement (DSA) to develop a wind energy project on Oahu, Hawaii. Pursuant to the DSA and related agreements, appellant had a 5 percent interest in Champlin Hawaii, an entity formed to jointly develop wind energy projects on Oahu. These agreements provided that all distributions from Champlin Hawaii would be made to respondent until respondent received a 15 percent internal rate of return on its invested capital. Then, appellant’s limited liability company, 3W, would participate in distributions. Appellant was paid a monthly services fee, starting at $2,000 per month, with a cap of $250,000. 

About two years after these agreements were made, appellant assigned his 5 percent interest in Champlin Hawaii to respondent. . .  The parties also amended the DSA. . . . [and] provided for a bonus to be paid to appellant after the project achieved its commercial operation date (COD) or was sold, and respondent achieved its 15 percent pre-tax internal rate of return. (Id., pp. 2-3.)

When the project was terminated, appellant maintained he was entitled to additional compensation and filed a mechanic’s lien in Hawaii:

Respondent terminated the DSA in March 2015, after appellant stopped working on project-related matters and the project missed many of its development milestone dates. . . .  In December 2018, respondent sold its interest to a third party. . . resulting in an actual internal rate of return of 8.60676 percent. 

In May 2020, appellant filed a mechanic’s lien in Hawaii, alleging he was entitled to additional compensation under the amended DSA. Respondent filed its complaint against appellant in California. It alleged that appellant breached the DSA by, among other things, failing to mediate before filing the mechanic’s lien and ignoring the DSA’s choice of law and forum selection provisions. Appellant’s cross-complaint alleges only that respondent breached the DSA when it “sold the project . . . without [appellant’s] knowledge or approval,” resulting “in the termination of [appellant’s] compensation . . . .” (Id., pp. 3-4; footnote omitted.)

Respondent brought a motion for summary judgment and/or summary adjudication upon its complaint and/or the cross-complaint.  Appellant, however, did not oppose the motion until the day before the hearing, failing to properly oppose the motion for summary judgment by filing opposing papers 14 days in advance providing admissible contrary evidence cited in a separate statement as to what facts were or were not disputed. (See, e.g., Code of Civil Procedure section 437c(b).)  

Appellant also acknowledged his cross-complaint did not reflect the legal theory upon which his claim was made and made a last-minute oral request to amend the complaint, which was denied.  The Hon. Thomas P. Anderle, of the Superior Court County of Santa Barbara therefore granted summary judgment in favor of respondent upon both the complaint and the cross-complaint.

The actions of appellant in the trial and appellate courts showed a lack of understanding of basic civil procedure

The appellate court affirmed all rulings of the trial court.  Moreover, it found the entire appeal to be without merit and noted the willful ignorance of the appellant and his counsel as to these merits warranted reiteration of the “duties of counsel” toward the court: 

. . .[W]e must opine on the duties of counsel as an officer of the court. We expect counsel to know and follow basic law relating to civil procedure. That did not happen here. We will impose sanctions for the filing of a frivolous appeal from a discretionary trial court ruling. We publish this opinion for several reasons, not the least of which is a guidepost to the bar not to file a frivolous appeal. We ourselves had occasion to warn attorneys concerning the abuse of discretion standard on appeal twenty-five years ago. [Citations.] We borrow the phrase from our previous opinion: This appeal “was ‘dead on arrival’ at the appellate courthouse.” [Citation.]  This does not mean that we do not consider the contentions of counsel. We do. But sometimes, the contentions are frivolous in light of the record on appeal. That is the case here. (Id., pp. 1-2.)

As Champlin pointed out, appellant did not make a formal request to amend or otherwise file a motion to amend the complaint.  Appellant thereafter filed a notice of appeal from both the denial of oral request to amend the cross-complaint and the order granting the motion for summary judgment, both of which are non-appealable orders and not final judgments.  Nonetheless, the appellate court utilized its discretion to treat the appeal as if it had been from an actual judgment following the granting of the motion, and therefore considered the merits of the appeal.

Which, of course, the appellate court found lacking.  In particular, the appellate court was critical of the failure of appellant to follow correct procedure in the trial and appellate courts.  This included appellant’s improper reliance upon “facts” which had not been established by citation to a separate statement supported by admissible evidence, such as appellant’s claims that he was entitled to additional monies under the amended DSA.  

Appellant also failed to appreciate the importance of the standard of review, to wit, the manner in which an appellate court looks at trial court rulings.  While an appellate court ordinarily utilized a “de novo” review whereby the appellate court looks at the evidence without deference to the trial court’s determinations, appellant’s failure to provide a proper opposition to the motion for summary judgment made this impossible:  

Trial counsel at the motion for summary judgment also represents appellant in this court. He ignores all of the traditional rules of appeal. He is correct that our review of a grant of summary judgment is de novo. That does not mean we consider counsel’s conclusion that there are issues of fact to be resolved at trial. These “facts” are not in the record, i.e., not in a separate statement of disputed facts or supported by declarations or other evidence. (Champlin, p. 11.)

The appellate court also noted appellant did not understand that the trial court’s ruling denying the motion to amend was left to the sound discretion of that court, meaning it would be disturbed absent an abuse of discretion:

He is also correct in saying that pleadings are to be liberally construed. That does not mean his oral motion to amend the cross-complaint should have been granted. This is a discretionary ruling. Again, counsel does not appreciate traditional rules on appeal. [Citation.]

The Second District therefore upheld the grant of summary judgment, finding appellant was not entitled to any additional monies beyond what he had already been paid.  Writing for a unanimous panel, Justice Yegan explained the appellate court’s finding there was no merit to any of appellant’s claims should “end” this matter and result in the removal of the mechanic’s lien filed in Hawaii.

Champlin is a stark lessen for practitioners who wish to avoid sanctions at the appellate level

One crucial lesson is that if counsel is not fluent in the procedural nooks and crannies of motion practice and has no experience in appellate procedure it is incumbent upon said counsel to seek assistance. (See California Rules of Professional Responsibility, rule 11, setting forth the minimum competency required in a particular matter and noting this competence may be met by “professionally consulting another lawyer whom the lawyer reasonably believes to be competent. . . or referring the matter to another lawyer whom the lawyer reasonably believes to be competent.”)

The appellate court in turn concluded the subject appeal was frivolous, and, even worse, was intended for the purpose of delay.  As Champlin aptly pointed out, despite a choice of law provision that disputes were to be decided in Santa Barbara county, appellant filed a mechanic’s lien in Hawaii.  Worse, the filing and maintenance of the appeal delayed the resolution of the mechanic’s lien, to the detriment of respondent.

Parties who intend to file an appeal where said filing extends the life of a lien or other encumbrance should consider whether this filing will later be viewed as a frivolous tactic designed for purposes of delay.  Counsel should also consider whether they have a good-faith basis to ignore a clearly-worded choice of law provision by making the deliberate choice to file in another jurisdiction.

Here, of course, the failure to consider the merits of the appeal resulted in appellant and counsel being ordered to pay respondent $10,000 and the Clerk of the Court $5,000. [1]  In summary, a 

trial lawyer may need the help of an attorney with particular expertise in 1) civil motion practice, and, 2) appellate procedure, including someone with sufficient experience to determine whether an appeal has sufficient merit to avoid a claim it is “frivolous.” [2]

1 - These sums were chosen to deter future conduct and to compensate for the harm caused by defending against the appeal and the mechanic’s lien.  However, respondent claimed these expenses were much greater than the $10,000 awarded, leaving open the question as to whether respondent may seek the remainder of its attorney fees in a California or Hawaii court.  This is because the opinion does not set forth whether, in addition to its mandatory arbitration and choice of law provisions, the amended DSA contained an attorney fee clause provision.  The opinion is also silent as to whether respondent’s complaint pled entitlement to attorney fees.

2- Such practitioners may include those certified by the California Bar as Certified Specialists in the area of Appellate law.