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Welcome to the "Sharks in the Water" weblog
of the WLF |
The Williams Lindberg Firm, PC website.
| Quote of the Day |
| Litigation is the basic legal right that guarantees every corporation its decade in court. |
| - David Porter |
Unappealing uphill battles
Do you ever get the feeling you’re doomed before you start? If you’re the appellant in the California Courts of appeal, you might have good reason for that that nagging sensation. [Scroll to July 25, if you're a few days late.] According to a fascinating Daily Journal article, appellate justice Kenneth R. Yegan estimates there are only five or six “true appeals” every year out of the hundreds filed in his appellate court.
In what is probably an occupational hazard, he has some pretty strong opinions about appellate practice. He first suggests that there should not be a right to appeal in civil cases. In his view, most civil appeals are likely to be a waste of time and money. His second opinion is that oral argument on appeal is mostly a waste of time.
I don’t agree with the first opinion, although at least one Georgia appellate court recently chimed in, observing that some cases shouldn’t “come back to court.” Trial courts unavoidably make mistakes and it’s fair to allow appeals for obvious legal mistakes. In California, frivolous and abusive appeals are partly checked because, typically, the appeal doesn’t stay judgment enforcement unless a bond is posted. Losing defendants must post a bond to avoid execution while on appeal, and the judgment accrues interest at a hefty 10% rate, unmatched by other safe investments. If a losing plaintiff appeals, at least the defendant is not “out of pocket,” other than attorney’s fees.
Oral argument, though, is another matter. In the appeals I’ve handled in the Ninth Circuit and before state appellate courts, it’s been pretty clear that oral argument was unnecessary and perfunctory. It certainly helped that I represented the respondent for all those appeals--my argument was pretty straightforward. Nevertheless, I think the court of appeal should decide whether to hear oral argument. Most cases can surely be submitted on the briefs.
I wonder if most civil appeals are truly as bad as the article describes, but then it appears some are really a criminal waste of space--so perhaps, yes, it is pretty bad out there.
On the other hand, appellate courts get it wrong now and then, themselves. I have a perfect 5 and 0 record in unreported cases. In my only reported case, the court blew it. Just my opinion, of course.
Posted by
Joseph R. McFaul
on Wednesday, July 27, 2005 at 00:00
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