Statements of Decision: The Ideal and the Reality

Posted on by Faith Pincus
14 Nov

by T. Peter Pierce, Esq., of Richards, Watson & Gershon

In 2018, we held our annual 3rd Advanced Appellate Conference program. One of our speakers, T. Peter Pierce, spoke about Statements of Decision: The Ideal and the Reality at that program, along with the Hon. Kathleen Banke, Associate Justice, CA Court of Appeal, 1st Appellate District, Division One. Peter has spoken at all of our appellate programs, including our 1st and 2nd Annual Advanced Appellate Conferences. And Peter came back for our 4th Annual Advanced Appellate Conference as well. Justice Banke spoke at our 3rd Annual and 4th Annual program in San Francisco and this year’s 5th Annual Appellate Seminar.

Limited time offer for our blog readers: Take 50% off any of the above conference recordings (with code SOD50) or 20% off of our Statements of Decision audio package (20SOD). Bundles excluded.

Both Peter and Justice Banke are fantastic speakers, as our attendees note every time they see Peter and Justice Banke speak.

We wanted to share with you some of their discussion, rules and cases they mentioned that you need to know about, and tips regarding Statements of Decision. And be sure to read all the way to the bottom to get to their list of strategies to employ.

A.     Applicable Circumstances for a Statement of Decision
– Trial court MUST issue a tentative decision on “the trial of a question of fact by the court.” (Cal. Rule Court (CRC) 3.1590.)
– Trial court MAY issue Statement of Decision on “the trial of a question of fact by the court.”  (CCP section 632.)  Must issue under certain circumstances (see below).
– Scope of “trial of a question of fact by the court.”  Does it apply to law and motion or other matters?

B.      Timing and Procedure Intertwined
1.  If trial is concluded within one calendar day or less than eight hours spread over more than one day, a party must request a Statement of Decision before the case is submitted for decision. Failure to do so means the loss of any right to a Statement of Decision, although a court may still issue one at its discretion. (CCP 632.)
2.  Regardless of length of trial, the trial court is required to issue a tentative decision. 
a.      If the trial court opts to announce a tentative decision orally, it must announce it in open court in the presence of all parties appearing at trial (CRC 3.1590(a)).  If the trial is concluded within one calendar day, or lasted less than eight hours, a party is not entitled to a written Statement of Decision.  Under CCP section 632, the trial court may issue an oral Statement of Decision.
b.      If the trial court does not announce its tentative decision in open court with all parties present, it must serve all parties with a minute order or written tentative decision.
         3.      Four specified options for a tentative decision are:
  Option 1- Court states that tentative decision is its proposed Statement of Decision (CRC 3.1590(c)(1)).
Issue: Does a party have 10 days after announcement or service of tentative decision to request that the Statement of Decision be modified to include certain issues (CRC 3.1590(d)), or does a party have 15 days under CRC 3.1590(g) to serve and file objections? Probably the latter because CRC 3.1590(c)(1) expressly refers to subdivision (g).
  Option 2- Court states it will prepare a Statement of Decision  (CRC 3.1590(c)(2)).  A party may request within 10 days of announcement or service of the tentative decision that the Statement of Decision include certain issues. (CRC 3.1590(d)).  The request should specify the controverted issues which the Statement of Decision should address.  (CCP section 632.)  Court must then prepare and serve a proposed Statement of Decision within 30 days of the announcement or service of its tentative decision.
   Option 3- Court orders a party to prepare a Statement of Decision (CRC 3.1590(c)(3)).  A party not ordered to prepare a Statement of Decision may request within 10 days of announcement or service of the tentative decision that the Statement of Decision include certain issues.  (CRC 3.1590(d).)  The request should specify the controverted issues which the Statement of Decision should address.  (CCP section 632.)
Option 4- Court directs that the tentative decision will become the Statement of Decision unless within 10 days a party (1) specifies the issues it requests be included in the Statement of Decision, or (2) “makes proposals” not included in the tentative decision (CRC 3.1590(c)(4)).  If a party does so, the court must then prepare and serve a proposed Statement of Decision within 30 days of the announcement or service of its tentative decision.
         4. The four options in the rule are not exclusive; the rule is phrased in the permissive “may.”  The court could do something else, like send out a written tentative decision without any further direction to the parties.
         Permissive language is consistent with the rule that a Statement of Decision is not required unless the parties request it.  If a Statement of Decision is timely requested and not waived, the trial court must render a Statement of Decision (Karlsen v. Superior Court(2006) 139 Cal.App.4th 1526, 1530-1531).  CCP section 632 requires the trial court to issue a Statement of Decision upon the request of any party if made within 10 days after the court announces a tentative decision (with exception of shorter trial where request must be made before submission of case).
Where the court did not designate either party to prepare a Statement of Decision, by default, and by analogy to California Rules of Court, rule 232(c) [predecessor to Rule 3.1590(c)], the court is required to prepare it.  (In re Marriage of Sellers(2003) 110 Cal.App.4th 1007, 1010–1011.)
        5.     Failure to issue a Statement of Decision in response to a timely request is not per se reversible error.  Instead, the failure is subject to harmless error review.  (F.P. v. Monier (November 27, 2017).)

C.      Elements of Statement of Decision
“A statement of decision explains the factual and legal bases for the trial court’s decision in a nonjury trial.” (Uzyel v. Kadisha(2010) 188 Cal.App.4th 866, 896.)

To comply with a request for a Statement of Decision, a court need only fairly disclose its determinations as to the ultimate facts and material issues in the case. (Central Valley General Hospital v. Smith (2008) 162 Cal.App.4th 501, 513.) When this rule is applied, the term ‘ultimate fact’ generally refers to a core fact, such as an essential element of a claim. Ultimate facts are distinguished from evidentiary factsand from legal conclusions. (Metis Development LLC v. Bohacek(2011) 199 Cal.App.4th 748, 758.)

The trial court is not required to respond point by point to the issues posed in a request for Statement of Decision. The court’s Statement of Decisionis sufficient if it fairly discloses the court’s determination as to the ultimate facts and material issues in the case.  (Ermoian v. Desert Hospital(2007) 152 Cal.App.4th 475, 494-495, 497-500; Golden Eagle Ins. Co. v. Foremost Ins. Co.(1993) 20 Cal.App.4th 1372, 1379–1380.)

A Statement of Decisionneed not address all the legal and factual issues raised by the parties. Instead, it need do no more than state the grounds upon which the judgment rests, without necessarily specifying the particular evidence considered by the trial court in reaching its decision.  (Muzquiz v. City of Emeryville(2000) 79 Cal.App.4th 1106, 1124.)

D.     Omissions or Ambiguities in the Proposed Statement of Decision
If a party fails to bring omissions or ambiguities in the proposed Statement of Decision’sfactual findings to the trial court’s attention, that party waives the right to assert on appeal that the Statement of Decision is deficient. (Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 59.)  The doctrine of implied findings would then apply if the statement truly contained ambiguities or omissions.

Ordinarily, when the court’s Statement of Decision is ambiguous or omits material factual findings, a reviewing court is required to infer any factual findings necessary to support the judgment. (Ermoian v. Desert Hospital(2007) 152 Cal. App. 4th 475, 494-495.)

If the Statement of Decision fails to decide a controverted issue or is ambiguous, any party may bring the omission or ambiguity to the trial court’s attention either before the entry of judgmentor in conjunction with a new trial motion or a motion to vacate the judgment under Code of Civil Procedure section 663. (CCP § 634.)  If an omission or ambiguity is brought to the trial court’s attention, the reviewing court will not infer findings or resolve an ambiguity in favor of the prevailing party on that issue. (CCP § 634.)

If an omission is not brought to the trial court’s attention as provided under the statute, however, the reviewing court will resolve the omission by inferring findings in favor of the prevailing party on that issue.If an ambiguity is not brought to the trial court’s attention as provided under the statute, the reviewing court will resolve the ambiguity by inferring that the trial court decided in favor of the prevailing party on that issue. (Code Civ. Proc., § 634.) To bring an omission or ambiguity to the trial court’s attention for purposes of Code of Civil Procedure section 634, a party must identify the defect with sufficient particularity to allow the court to correct the defect.  (Uzyel v. Kadisha(2010) 188 Cal. App. 4th 866, 896-897; Bay World Trading, Ltd. v. Nebraska Beef, Inc.(2002) 101 Cal.App.4th 135,139 [objections must be filed 15 days after proposed decision].)

In rendering a Statement of Decision under Code of Civil Procedure section 632, a trial court is required only to state ultimate rather than evidentiary facts.  The trial court need not discuss each issue listed in a party’s request for a Statement of Decision; all that is required is an explanation of the factual and legal basis for the court’s decision regarding the principal controverted issues at trial. (In re Marriage of Balcof (2006) 141 Cal.App.4th 1509, 1530; Hellman v. La Cumbre Golf & Country Club(1992) 6 Cal.App.4th 1224, 1230; Wallis v. PHL Associates, Inc. (2013) 220 Cal.App.4th 814, 824–827.)  Only when the trial court fails to make findings on a material issue which would fairly disclose the trial court’s determination would reversible error result.  If the judgment is otherwise supported, the omission of findings is harmless error unless the evidence is sufficient to sustain a finding in the losing party’s favor which finding would completely undermine findings supporting the judgment. A failure to make findings on an immaterial issue is not reversible error.

E.      Objections to a Proposed Statement of Decision
Any defects in the trial court’s Statement of Decisionmust be brought to the court’s attention through specific objectionsto the statement itself – not through a proposed alternative Statement of Decision. By filing specific objections to the court’s Statement of Decisiona party pinpoints alleged deficiencies in the statement and allows the court to focus on the facts or issues the party contends were not resolved or whose resolution is ambiguous. A proposed alternative Statement of Decisiondoes not serve these functions and does not satisfy the requirements of Code of Civil Procedure section 634 and Rule 3.1590. (Golden Eagle Ins. Co. v. Foremost Ins. Co.(1993) 20 Cal.App.4th 1372, 1380; Bay World Trading, Ltd. v. Nebraska Beef, Inc. (2002) 101 Cal.App.4th 135,139–140; Ermoian v. Desert Hospital(2007) 152 Cal.App.4th 475, 497-500;Fladeboe v. American Isuzu Motors Inc. (2007) 150 Cal.App.4th 42, 59-61.)

F.      Interplay Between Statement of Decision and Judgment
A court may amend its Statement of Decisionafter it receives objections from affected parties. If judgment has not yet been entered, the trial court has inherent power to amend its Statement of Decision to award prejudgment interest. Even after a court has issued a written decision, the court retains authority to change its findings of fact or conclusions of law until judgment is entered. Until a judgment is entered, a Statement of Decision is not effectual for any purpose (Code Civ. Proc., § 664).  A court sitting as a trier of fact may at any time before entry of judgment amend or change its findings of fact.  (Bay World Trading, Ltd. v. Nebraska Beef, Inc.(2002) 101 Cal.App.4th 135, 141.)

A Statement or Decision or memorandum of decision is not appealable. Courts embody their final rulings not in Statements of Decision but in orders or judgments. Reviewing courts have discretion to treat Statements of Decision as appealable when they must, as when a Statement of Decision is signed and filed and does, in fact, constitute the court’s final decision on the merits. But a Statement of Decision is not treated as appealable when a formal order or judgment follows. (Pangilinan v. Palisoc(2014) 227 Cal.App.4th 765, 769; Alan v. American Honda Motor Co., Inc.(2007) 40 Cal.4th 894, 901.)

G.     Strategies Involving Statement of Decision
–        If the tentative decision is in your favor, do not request a Statement of Decision.
–        If the tentative decision is against you, timely request a Statement of Decision.  Possible exception when de novo standard of review.
–        If you lose on the tentative, identify alternative theories that the trial court did not decide, and request an express statement that the trial court did not reach the issues encompassed within those theories.
–        Be judicious in objecting to Statement of Decision.  Focus on broader issues and not on every minor point.
–        If you are the prevailing party, and the losing party objects to the Statement of Decision, think carefully about whether the objections will allow the trial court to clear up ambiguities and omissions, thereby bolstering the judgment in your favor.
–        If you are required to request a Statement of Decision before the case is submitted, make an educated guess as to whether you will be the prevailing party.

 

 

Michael Sachs is our Latest Featured Speaker!

Posted on by Faith Pincus
michael
06 Nov

Our latest featured speaker is Michael Sachs from Clark Hill PLC!

Michael will be on the faculty panel at our upcoming 13th Annual California Superior Court Boot Camp in San Francisco on November 8!

Michael has previously spoken for us at our 12th Annual CA Superior Court Boot Camp, and our 2018 Mastering the Deposition seminars, where seminar attendees raved about his presentations. Welcome back, Michael!

Michael’s practice focuses on a variety of civil litigation matters, including toxic tort and product liability, Proposition 65, lemon law and employment law. He has handled these matters in all phases of pre-litigation, litigation and appeal. Michael has tried several matters to verdict in the various Bay Area Superior Courts and the Northern District of California and has argued before the California Court of Appeal. Michael is devoted to his clients and seeks to find cost-effective ways to manage their cases while still vigorously defending their interests in and out of the courtroom. He has achieved numerous successful results for his clients through settlement negotiations, mediations, dispositive motions and trial.

Steven Hart is our Latest Featured Speaker!

Posted on by Faith Pincus
steven
05 Nov

Our latest featured speaker is Steven Hart from Hart McLaughlin & Eldridge!

Steven will be on the faculty panel at our upcoming The Art of Jury Selection: Getting it Right in Chicago on November 29! This is Steven’s first year speaking with us, and we can’t wait for his presentation!

A seasoned trial lawyer with more than two decades of experience, Steven litigates a wide variety of civil matters including class action, mass torts, personal injury, products liability, toxic tort, environmental, automotive, and transportation cases. He also has a record of success representing both defendants and plaintiffs, from Fortune 500 companies, medium, and small businesses to individuals, in class action cases. Most recently, Steven obtained a $100 million-plus settlement for a class of farmers and small businesses in an antitrust class action suit in the Northern District Federal Court in Chicago. Steven received a 2013 Jury Verdict Reporter Trial Excellence Award for his work on this case, the highest reported Illinois verdict/settlement in 2013.

Steven has tried cases to successful jury verdict throughout the country and has argued before State and Federal courts of appeal. His practice includes State and Federal trial work in construction and premises liability actions. It was Steven’s work in the latter arena that led Kohl’s to nominate Steven’s firm as a “Go-To” Litigation Law Firm in American Lawyer’s 2012 survey. Steven also represents corporations and individuals in employment-related matters.

Steven serves as National Coordinating and Trial Counsel for several Fortune 500 companies in asbestos and environmental litigation. He is National Coordinating and Trial counsel for DHL transportation litigation. He has tried cases in Illinois, New York, Texas, Indiana, California, and Wisconsin for manufacturers and premises owners. He has developed extensive experience in epidemiology, medical causation, industrial hygiene, accident reconstruction, and biomechanics.

Steven is a published legal author and frequent lecturer. His writings have been published by the Illinois Institute of Continuing Legal Education, including “Using Expert Witnesses: Principles and Pitfalls.” Steven is also an adjunct professor in trial advocacy at Chicago-Kent College of Law. Numerous bar associations and legal organizations have asked him to speak at distinguished events.

Steven was recently appointed to the 47th Ward Democratic Organization Judicial Review Committee, where his committee will be responsible for interviewing, vetting and slating Cook County Judicial Candidates for election.
A resident of Chicago, Illinois, Steven is married to Jill Hart, and together they have two daughters and a son.

Brian Eldridge is our Latest Featured Speaker!

Posted on by Faith Pincus
brian
02 Nov

Our latest featured speaker is Brian Eldridge from Hart McLaughlin & Eldridge!

Brian will be on the faculty panel at our upcoming The Art of Jury Selection: Getting it Right in Chicago on November 29! Brian first spoke for us at our 9th Annual Federal Court & Litigation Boot Camp, where seminar attendees raved about his presentation. Welcome back, Brian!

Brian Eldridge is a trial lawyer who devotes 100% of his practice to civil litigation. Brian has a wide range of experience successfully litigating multi-million dollar, high-stakes cases on behalf of his clients. He concentrates his practice in products liability, construction/construction defect, transportation, premises liability, commercial litigation, mass torts, and class action matters. He has handled numerous cases involving death and catastrophic injuries, including paralysis, traumatic brain injuries, amputations and other significant permanent disabilities.

Within the commercial litigation context, Brian has successfully litigated cases involving breach of contract and allegations of fraud and bad faith. He has also handled numerous consumer class action lawsuits under federal statutes including the Fair and Accurate Credit Transactions Act (FACTA), the Fair Debt Collection Practices Act (FDCPA) and the Telephone Consumer Protection Act (TCPA). In addition, Brian has litigated cases involving alleged environmental exposure to mold, vinyl chloride, and polychlorinated biphenyl (PCB).

Brian was selected for inclusion in the Illinois Rising Stars list for eight straight years, from 2008 to 2015. No more than 2.5% of lawyers under the age of 40 in the state of Illinois are selected for this honor. In 2013, Brian was honored to be named to Chicago Daily Law Bulletin’s “40 Illinois Attorneys Under Forty to Watch” list. In 2015 and 2016, Brian was named an Emerging Lawyer by Leading Lawyers. The distinction of being named an Emerging Lawyer is reserved for the top 2% of Illinois lawyers who are 40 years old or younger and have been identified by their peers as proving themselves to be professional, ethical, and experienced at an early point in their legal career. In 2017, Brian was selected as an Illinois Super Lawyer, which is limited to 5% of attorneys in the state.

Brian’s practice philosophy focuses on being accessible and responsive to clients at all times. He is on the rapid response team for several clients and is frequently called upon to orchestrate immediate investigations. Through his years of practice, Brian has developed an extensive expert network, having worked with consultants in various specialized areas including medicine, engineering, construction, epidemiology, pharmacology, economics, federal regulations, safety standards, risk assessment and psychology.

Brian lives in Highland Park with his wife, Jodi, and their three daughters.

Oral Argument: Practice Tips by Karen Kimmey of Farella Braun + Martell

Posted on by Faith Pincus
01 Nov

by Karen Kimmey from Farella Braun + Martell in San Francisco

Karen Kimmey has spoken at our annual Superior Court Boot Camps in San Francisco for more than ten years. Over that time she has provided a number of excellent resources for our attendees. Below is a short list of tips Karen wrote on Oral Argument.

 

  • Always check the tentative and be prepared to address any issues raised.
  • Check in with the court room clerk and be on time.
  • Treat the courtroom staff well.
  • Have a simple outline in front of you with key points and case cites.
  • Have brief remarks prepared but focus on answering questions.
  • Do not simply repeat arguments from your brief. Approach it in a different way.
  • Never address opposing counsel directly.
  • Do not interrupt opposing counsel or the judge.
  • Speak slowly. Don’t annoy the court reporter.
  • Avoid personal attacks or bickering. Judges hate it.
  • Know when to be quiet.
  • Come prepared with a proposed order.
  • Ask clarifying questions if unclear of what the court has ruled.

If you’d like to hear more from Karen, and listen to a program dedicated to motions, discovery and depos, you might be interested in this prior seminar at which she spoke:

9th Annual Superior Court Boot Camp: Discovery, Depos and Motions – Get it Right

You might also be interested in our upcoming 13th Annual CA Superior Court Boot Camp on October 12th, 2018 in Los Angeles and November 8th, 2018 in San Francisco. You can register there, or if you are reading this past those dates, purchase the audio package.

Nick Callahan is our Latest Featured Speaker!

Posted on by Faith Pincus
nick
31 Oct

Our latest featured speaker is Nick Callahan from Barack Ferrazzano Kirschbaum & Nagelberg!

Nick will be on the faculty panel at our upcoming The Art of Jury Selection: Getting it Right in Chicago on November 29! This is Nick’s first year speaking with us, and we can’t wait for his presentation!

Nick is a trial lawyer. He has tried more than 30 jury trials, bench trials and arbitrations, including nine jury trials as lead attorney. He splits his time between the Firm’s Chicago and Minneapolis offices.

Nick’s practice is national. In recent years he has handled cases in 15 states and appeared in proceedings conducted abroad. Clients often come to him when needing assistance with disputes involving finance, accounting, valuations, securities, real estate, corporate governance and shareholder claims, merger and acquisition claims (both pre- and post-closing), bankruptcy litigation, and internal and government investigations. He regularly presents Continuing Legal Education classes to other lawyers on these topics.

Nick’s clients range from publicly-traded companies and large investment funds to individuals, and he represents them in cases ranging from bet-the-company class actions to smaller disputes. Many of those he advises are in the financial industry, including banks, private equity firms, hedge funds, mortgage companies and investment advisers.

For jury trials first-chaired by Nick, many times jurors have ranked Nick the highest rating of “excellent” in all categories on anonymous juror questionnaire forms supplied by the court.

Nick rejoined the Firm in 2015 and helped open its first satellite office, which is located in Minneapolis, his hometown where he had moved several years before. He is married with three young kids who, like him, are loud.  When his kids are older he plans on resuming hobbies he used to enjoy: international travel, attending outdoor music shows, scuba diving and spontaneous adventures.

Marijuana and Banking – Never the Twain Shall Meet. Or will they?

Posted on by Faith Pincus
dante
29 Oct

One of our upcoming Recreational and Medical Marijuana Law and Business in California speakers, Dante Tosetti, wrote this recently published paper on Federal guidance to enhance the availability of financial services for, and the financial transparency of, marijuana-related businesses: The distinctly separate federal approaches between marijuana-related businesses and marijuana-related business banking.

And if you’re interested in cannabis law at all, or cannabis businesses, you know that banking is one of the biggest issues facing those in the industry. And this includes attorneys who represent cannabis related businesses. After all, if the businesses have to operate as all cash businesses, that means they have to pay you in cash as well. And that means, if you are an attorney or anyone else, you have to follow a host of regulations to ensure you accurately report the income and avoid being accused of money laundering. In other words – banking is a central challenge to cannabis businesses, and those who serve them.

The following is the “abstract” segment of the paper, but you can read the full paper online here.

“In general, state licensed marijuana related businesses (“MRB”) have difficulty obtaining standard banking services from financial institutions since marijuana remains illegal under federal law. The prevailing notion that additional federal action is necessary to open banking services to the marijuana industry is inappropriate. Since MRB banking is inherently high-risk, the argument for additional legal or regulatory leeway to encourage MRB banking is not a sound solution.

Federal guidance is in place for all state and federal chartered banks and credit unions to provide banking services to MRBs. A limited number of financial institutions follow the federal guidance and offer MRB banking services in an open and transparent manner, yet the number of such financial institutions does not meet the overall demand of the marijuana industry. Reinforcement of the federal guidance and awareness of the current best practices within marijuana banking could encourage additional financial institutions to service MRBs. As more financial institutions make the business decision to enter MRB banking under existing regulatory expectations, greater transparency of the marijuana ecosystem will be made available to all stakeholders.” – Dante Tosetti

We hope you’ll join us at the program on November 1-2, 2018. If you miss it, don’t worry, you can purchase the audio recording package here.

Meghan Loisel is our Latest Featured Speaker!

Posted on by Faith Pincus
meghan
26 Oct

Our latest featured speaker is Meghan Loisel from Rudy, Exelrod, Zieff & Lowe LLP!

Meghan will be on the faculty panel at our upcoming 13th Annual California Superior Court Boot Camp in San Francisco on November 8! This is Meghan’s first year speaking with us, and we can’t wait for her presentation!

Ms. Loisel advocates on behalf of employees in individual and class action litigation in a range of employment matters. She has experience with discrimination, harassment, retaliation, failure to accommodate, and constitutional claims.

Before joining Rudy, Exelrod, Zieff & Lowe LLP, Ms. Loisel was a deputy county counsel for Santa Clara County. She defended the County and its employees in employment, civil rights, and tort cases. She also litigated complex affirmative cases on behalf of the County and the People of the State of California, and was a member of the trial team who litigated a public nuisance action against former lead paint manufacturers, People v. Atlantic Richfield Company. Ms. Loisel also litigated civil rights cases as a fellow at the American Civil Liberties Union’s Reproductive Freedom Project in New York City.

Ms. Loisel graduated from New York University School of Law where she was the symposium editor for the Review of Law and Social Change. During law school, she worked as a law clerk for the Legal Aid Society Employment Law Center and the Bronx Defenders. Ms. Loisel received her undergraduate degree in History and Government from the University of Texas at Austin.

Top Tips For Demurrers

Posted on by Faith Pincus
24 Oct

Steven Ragland, a partner at Keker, Van Nest and Peters has spoken at our annual California Superior Court Boot Camps almost every year since 2010.

At one of our prior Superior Court Boot Camps, Steven provided this terrific tip sheet for handling Demurrers. It contains suggestions regarding what you need to think about when filing a Demurrer, when writing the brief, and other things you must consider, including arranging for the court reporter, checking the tentative ruling, and preparing the order.

If you’d like to attend our 13th Annual Superior Court Boot Camp, coming up on November 8th in San Francisco, please go here. You can also pre-order the audio package for the San Francisco program, or purchase the audio package for the program just held in Los Angeles on October 12th, at the link provided.

But register quickly (if you see this post before November 8th, 2018) because we’re almost sold out in San Francisco.

Enjoy!

Tips for Demurrers:

I.  Initial Considerations – consider whether you should file a demurrer

A.  Defects in plaintiff’s legal theory must appear on the face of the complaint itself, or through judicially noticeable matters

B.  Only file if it serves a litigation purpose

1.  Expensive for client

2.  Plaintiff will almost certainly get leave to amend

3.  Demurrer will educate adversary

4.  Might result in a stronger complaint

C.  Read (or re-read) Weil & Brown, CCP, and local rules before drafting

D.  Get more time from Plaintiff if you need it (check rules for when stipulation is enough and when you need ex parte application/court order)

II.  Brief-writing considerations

A.  Have a Theme. Really, have a theme.

1.  After striking out before another tribunal, plaintiff tries its hand here

2.  No good deed goes unpunished

3.  A deal is a deal

4.  Here we go all over again (especially for successive demurrer)

B.  Make the Intro count

1.  The Introduction should tell the whole story in summary form

2.  It should tell the Court why you should win—both under the law and as a matter of justice/fairness

3.  After reading Introduction, Judge/law clerk should be convinced you win

C.  Organization matters

1.  Use headings/sub-headings

2.  Headings should be declarative sentences

a.  “This Demurrer should be sustained because the Complaint neither sets forth the material terms of the contract nor attaches the purported contract.”

b.  “The Complaint fails to join indispensable parties.”

c.  “This Court lacks subject matter jurisdiction because Federal Courts have exclusive jurisdiction over cases requiring resolution of patent law issues.”

3.  Headings should tell your entire story

a.  The Judge should be able to scan the table of contents and remember exactly what you are arguing

b.  If fact section is long, break it up

(i)  Your fact section headings can preview your arguments

4.  Spend the time needed to organize arguments

a.  If brief is not easy to follow, you’re more like to lose

D.  Reveal and deal with contrary authority

1.  Always address and distinguish all of your opponent’s primary cases (and secondary to, if possible)

2.  Don’t assume opponent won’t find the cases that go against you

3.  Candor is crucial

a.  Be honest about the hurdles you face, then explain how you clear them

b.  Evasiveness and misstatements of the law erode your credibility, and can lose your motion (never jeopardize your reputation)

E.  Lead with your strength

1.  If you have four arguments for demurrer, address strongest one first, then go down in descending order of strength

2.  If you have one really solid basis, don’t waste space/credibility with marginal arguments

3.  If opposing, take on defendant’s strongest argument first and eviscerate it

4.  On Reply, you don’t have to follow opposition’s organization

F.  Every brief should be a stand-alone document

1.  Write the Reply/Opposition so it makes sense even without reading any other brief (or the Complaint)

G.  Miscellaneous

1.  Don’t be nasty

a.  Opponent is wrong, not “lying” or “conniving” or “slimy”

2.  If you see an adjective or adverb, delete it (most of the time)

3.  Short, declarative sentences; eliminate passive voice

III.  Arrange for a Court Reporter

A.  Coordinate logistics with your adversary and agree to share costs

B.  Even if you lose, what’s said at the hearing may be useful to your client (e.g., successive demurrers, limiting / narrowing discovery, holding plaintiff to its theory, crystallizing issues for summary judgment)

IV.  Check the tentative ruling

A.  Check it as soon as it comes out (check local practice)

B.  Don’t forget—set an Outlook reminder

C.  Notify opponent if you intend to contest—check rules for deadlines and requirements for notice

D.  If you win tentative, sit on your hands

1.  Do not contact opposing counsel to notify (or gloat)

2.  Tentative will be adopted if no one contests

3.  Do not appear at hearing unless other side tells you it will contest—If opponent shows up at hearing without giving you notice, the court will not permit argument and tentative will be adopted…unless you show up

E.  If you lose, go argue like hell (but expect to lose)

1.  Always be respectful, but tell the Court why the tentative is wrong.

2.  Don’t just repeat what you said in your briefs

3.  Limited to issues raised in papers, but bring a fresh perspective and nuance

V.  Prevailing party prepares order

A.  Check rules for timing, details

B.  Be sure to set deadlines for Answer/Amended Complaint in the order if you want to deviate from standard timing provisions

C.  Might be able to get opponent’s sign-off of proposed order at hearing

Justice Entrepreneurs Project’s Pricing Toolkit

Posted on by Faith Pincus
23 Oct

At Pincus Professional Education, we are committed to helping educate attorneys who work for legal aid firms and serve low-income populations. One of our partners in this effort is the Chicago Bar Association’s Foundation (Chicago Bar Foundation). Their Justice Entrepreneurs Project (JEP), is a small business incubator that helps newer lawyers start innovative, socially conscious law practices serving low and middle income Chicagoans. We wanted to share their Pricing Toolkit with you as they are continually providing good resources for attorneys.

From the Chicago Bar Association’s Foundation website: One of the core principles for the JEP program and JEP lawyers is to make legal assistance more affordable and transparent to low and moderate income people by offering fixed fees and flexible representation options to potential clients. The toolkit came about after the CBF discovered in the early stages of the JEP program there was a dearth of practical resources for lawyers serving the consumer market who seek to price their services by using arrangements other than the billable hour.

Thanks to a dedicated team effort of partners, volunteers, and staff, this toolkit is “Version 1.0” to help JEP lawyers and other lawyers who are interested in pricing their services to be more affordable and transparent. The toolkit also contains a two page summary matrix that provides a brief overview of various alternative pricing options that can be effective in the consumer market.

A more advanced version of the toolkit will include an appendix with sample forms and templates.