10 Common mistakes that trial lawyers make (Part 3)

10 Common mistakes that trial lawyers make that can lead to appellate disaster, and how to avoid them (Part 3)

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By Jeffrey I. Ehrlich

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Mistake 5: Failing to make a timely request for a statement of decision in a bench trial

A statement of decision explains the factual and legal basis for the court’s decision. It supplements the record for appeal, allowing the reviewing court to examine the trial court’s reasoning on disputed issues to determine whether the appealed decision is supported by the evidence and the law. (Whittington v. McKinney (1990) 234 Cal.App.3d 123, 126, 127, 285 Cal.Rptr. 586.) Where no statement of decision is issued (either because it is not requested, or was waived by failure to make a timely request), the appellate court will apply the doctrine of implied findings; that is, it will presume on appeal that the trial court made all necessary factual findings to support the judgment. On appeal, the only issue will be whether there is sufficient evidence to support the judgment. (Michael U. v. Jaime B. (1985) 39 Cal.3d 787, 792-793, 218 Cal.Rtpr. 39.)

Under section 632 of the Code of Civil Procedure, you have 10 days from the time the court announces its tentative decision to request a statement of decision. NOTE: if the bench trial lasts less than 1 day, or less than 8 hours spread over more than a day, you must request the statement of decision at the time the matter is taken under submission. (Code Civ. Proc. § 632.) The request for statement of decision must specify the controverted issues on which the statement of decision is requested. (Id.) After a request, any party has 10 days to make objections and counter-proposals for the contents of the statement of decision. (Id.)

Once the court issues the proposed statement of decision, the losing party has 15 days to serve and file objections to the statement of decision on the grounds that it omits findings on critical issues or that its findings are ambiguous. (Code Civ. Proc. § 634.) The objections must be specific, not generalized, or they will not preserve the issue for appellate review. (Civil Trials, § 16:183.) The failure to object waives the issue on appeal. (Id., § 16:186.) But legal errors appearing on the face of the statement of decision are not waived, and need not be objected to in order to preserve the issue. (Id., § 16:187.)

Mistake 6: Failing to object to an improper verdict form

If the trial judge is going to submit the case to the jury on an improper verdict form, you must object and propose a proper form, or you will waive the issue on appeal. (Mardirossian & Associates, Inc. v. Ersoff (2007) 153 Cal.App.4th 257, 277, 62 Cal.Rptr.3d 665 [court would not consider challenge to special verdict form not raised in the trial court; Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 131, 41 Cal.Rtpr.2d 295 [“BMW waived any objection to the special verdict form by failing to object before the court discharged the jury”]; Lynch v. Birdwell (1955) 44 Cal.2d 839, 851, 285 P.2d 919 [where defendants did not object at trial to error in verdict form, “it appears to be the settled rule that they have waived their right to complain as to its form”].)

For example, in Greer v. Buzgheia (2006) 141 Cal.App.4th 1150, 1158, 46 Cal.Rtpr.3d 789, the plaintiff proposed a jury-verdict form that did not segregate the components of economic damages, including lost wages, and medical expenses. The defense did not object. After the verdict, the defense sought to have the court reduce the amount of medical expenses to reflect the fact that the plaintiff’s health insurer had paid substantially less than the amounts awarded by the jury. But the trial court refused to make such a reduction because the verdict form only provided for a single award of economic damages, leaving no way to determine the amount awarded for medical expenses.

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Appellate lawyer, Jeffrey EhrlichCalifornia appeals lawyer, Jeffrey I. Ehrlich, is the principal of the Ehrlich Law Firm with Los Angeles County law offices. He is certified as an appellate specialist by the California Bar’s Committee on Legal Specialization, and is the editor-in-chief of the Consumer Attorneys of Southern California’s Advocate magazine.