Not To Be Published (1/03/23)

tl;dr:

-- Counsel accused trial judge of conducting a “magical mystery trial” – and that was the nicest thing he had to say; appellate court not happy

-- Is a “vexatious litigant” determination appealable? If you’re the vexatious litigant, then no.

-- New Cal.App.Law.Pod episode,?The Coming Changes to Med-Mal Caps, with Ben Ikuta.

Dear Colleagues:

Each week, I look for cases presenting a likelihood to shock, surprise, puzzle, inform, anger, or elate. The summaries are mine, the reactions are yours. If you would like to share your reactions, or provide a tip, email me at?[email protected].

And I am always happy to talk about these kinds of issues in your cases.

–Tim Kowal

Counsel Admonished for Uncivil Accusations in Appellate Briefs

Judges just don’t get your arguments sometimes, it seems, and that can be really frustrating. But don’t lose your cool. The Court of Appeal in??Shah v. Fidelity Nat’l Title Ins. Co. (D1d1 Dec. 27, 2022) 2022 WL 17959563 (nonpub. opn.) admonished counsel for impugning the trial court and opposing counsel in the appellate briefs.

The plaintiff had his case dismissed on a demurrer, but got it reversed on appeal. But then the trial court dismissed his case on summary judgment. To the plaintiff, it probably felt like the trial court was looking for any way to quickly dispose of the case.

And so his attorney on appeal let the trial court have it. He said the trial court “refuses to learn” the law, “misrepresents” the law and “knowingly errs to achieve a preconceived outcome.” Counsel also called the MSJ proceedings “a magical mystery trial” and accused the trial court of “duplicity.”

Not to be left out, counsel also accused the defendant’s counsel of using “sophistry” to “seduce gullible courts” with a “bag of tricks, lies, and misdirection.”

The Court of Appeal admonished—though did not sanction—counsel for this diversion from the rules of civility. “Such bombastic, ad hominem attacks have no place in an appellate brief and are potentially contemptuous and sanctionable behavior.”

My Comment: While perhaps not widespread, there is a notion among many attorneys that such bombastic language is needed to “cut through the noise” and get a court to understand the severity of the problem. While I strongly disagree, my faith in civility has been shaken when judges not only fail to express umbrage at uncivil language, but even seem to take conclusory accusations at face value. For this reason, while I never use bombast in my own writing, I cannot count it out of the question: sometimes, at least in the trial courts, it does seem to work. Much to my chagrin.

But I have never seen it work in the appellate courts. You may be admonished for using bombast and adverbs to excess. But worst of all, you will have lost all hope of persuading your panel.

This is a summary. Read the full article at the?tvalaw.com?blog?here.

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Vexatious Litigant Determination Is Appealable

The holding in the published opinion in Blizzard Energy, Inc. v. Shaefers (D2d6 Nov. 29, 2022) 85?Cal.App.5th 802 is that a frivolous cross-complaint counts toward the five frivolous lawsuits an in pro per litigant may file under Code of Civil Procedure section 391 before being deemed a vexatious litigant. The trial court had refused to declare Shaefers a vexatious litigant because one of his lawsuits was a cross-complaint and the trial court thought that didn’t count. It does count.

But how did Blizzard convince the court to grant review of the order? Parting ways with a First District opinion from earlier this year, the Second District here held that an order declaring a person to be a vexatious litigant is the equivalent of an injunction. And injunction orders are appealable under section 904.1. So the Blizzard court held the order was appealable.

My view: I’m not so sure. Orders that restrict or require actions in the real world are different from orders that restrict or require actions in court world. Orders requiring a corporation to pay dividends? Injunction, of course, thus appealable. Orders requiring a corporation to produce documents? Also an injunction? Not a chance.

Yet what is the difference? The only difference I can detect is one affects the real world, and the other affects court world. Orders governing conduct in court world are not going to be considered injunctions. So consider this holding involving vexatious-litigant determinations a one-off.

This is a summary. Read the full article at the?tvalaw.com?blog?here.

Get “Not To Be Published,” a weekly digest of these articles, delivered to your inbox by subscribing here:?https://lnkd.in/g23bc4Y

The Coming Changes to Med-Mal Caps, with Ben Ikuta

The reason there are so few medical-malpractice attorneys is that, on top of having to overcome juries’ strong pro-doctor bias, damages caps turn even the most hard-fought wins into mere break-even propositions. So how did?Ben Ikuta, a new guard med-mal attorney, amassed over $17 million in client victories in 2022 alone?

Ben shares some of his secrets and insights:

?? Winning a medical-malpractice trial requires flawless planning and execution, so hyper-preparedness is essential, including hiring experts even before filing a case.

?? The right expert is important. Jargon and confusion work to the defendants’ benefit. So the plaintiff’s experts need to be able to thread the needle between showing expertise while also being intelligible and relatable.

?? The MICRA caps limit general damages to $250,000, upending the economics of litigating even the most heart-breakingly devastating injuries caused by egregious negligence. So the only way to bring justice to the bad actors in the healthcare field is to find high-earning victims—the MICRA caps don’t apply to economic damages.

?? In 2023, the $250,000 MICRA caps will be relaxed slightly to $350,000, and the amount may be recovered against the provider defendant, the institutional defendant, and unaffiliated defendants, for a total possible non-economic damages recovery of $1,050,000.

?? Firm culture matters: Ikuta Hemesath is fully virtual, which keeps costs low and gives staff flexibility. What about firm culture and relationships? Ben shares that the firm takes off one day a month for a group outing.

Listen to the podcast here.

Video clips from the podcast are available here.

You can also subscribe to the California Appellate Law Podcast on your favorite podcast player.

_______________________

I am always happy to talk with you about these kinds of issues in your cases.

-Tim

Tim Kowal?helps trial attorneys and clients win their cases and?avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at?www.CALPodcast.com, and posts regular updates of appellate news and tips for trial attorneys at?www.tvalaw.com/articles. Contact Tim at?[email protected]?or (714) 641-1232.

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