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

Getting a case from the pleading stage through trial can be like trying to walk through a minefield. There are always procedural traps lurking to snare the unwary trial lawyer. Here are 10 easy, and distressingly common mistakes for a trial lawyer to make, which can have disastrous consequences on appeal. Happily, they are easily avoided, if you know what to look for.

Mistake 1: Failing to appeal from an appealable order or to take a writ from an order subject to review by a statutory writ

“There can be but one final judgment in an action, and that is one which in effect ends the suit in the court in which it is entered, and finally determines the rights of the parties in relation to the matter in controversy” (San Joaquin County Dept. of Child Support Services v. Winn (2008) 163 Cal.App.4th 296, 300, 77 Cal.Rptr.3d 470, 472.) Under the “one final judgment” rule, an appeal will only lie from the final judgment; not from intermediate rulings. (Kinsmith Financial Corp. v. Gilroy (2003) 105 Cal.App.4th 447, 452, 129 Cal.Rptr.2d 478, 481; Maier Brewing Co. v. Pacific Nat. Fire Ins. Co. (1961) 194 Cal.App.2d 494, 497, 15 Cal.Rptr. 177, 179.)

The flip side of the one-final judgment rule is that if a judgment or order is appealable, aggrieved parties must file a timely appeal or forever lose the opportunity to obtain appellate court review. (Eisenberg, Horvitz & Weiner, California Practice Guide — Civil Appeals and Writs (Rutter 2009 rev.)(“Civil Appeals”) § 2:13, emphasis in text.) This is a jurisdictional principle: Appellate courts have no discretion to entertain appellate or writ review of appealable judgments or orders from which a timely appeal was not taken. (Id., citing Code Civ. Proc. § 906; Marriage of Weiss (1996) 42 Cal.App.4th 106, 119, 49 Cal. Rprt. 2d 339, 348.) A related rule is that when appellate review of a particular order is mandated by writ (a “statutory writ”) and the statute provides that this is the exclusive manner to obtain review, the failure to file a timely statutory writ will forfeit the right to later appellate review. (Civil Appeals, ¶ 15:96.1.)

The potential trap for trial lawyers then, is that a court issues a ruling or order that is deemed final or appealable, and the lawyer fails to appeal at the time, thinking instead that the matter will be addressed in the appeal from the final judgment.

There is no easy, all-purpose rule to apply to avoid this problem. Instead, trial lawyers can protect themselves by (a) being familiar with section 904.1 of the Code of Civil Procedure, which sets forth which orders are appealable; and (b) having a passing understanding of the workings of the one-final judgment rule, and its exceptions, which allow appeals from less-than-final judgments or orders.

For example, a “death knell” order that denies certification of a class action, or that disposes of an entire class action (such as an order sustaining a demurrer to class allegations) is deemed “final” and is immediately appealable. (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429, 435, 97 Cal.Rptr.2d 179, 184 [denying class certification]; Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 699, 63 Cal.Rprt. 724, 728 [same]; Wilner v. Sunset Life Ins. Co. (2000) 78 Cal.App.4th 952, 957, 93 Cal.Rprt.2d 413, 416, fn. 1 [demurrer to class allegations].) The death-knell doctrine is therefore deemed part of the one-final judgment rule, not an exception to it.

In general, the law recognizes two general exceptions to the one final judgment rule: (1) a “collateral” final judgment or order, or (2) a judgment final as to a party. (“Civil Appeals” § 2.76.) The latter exception occurs frequently — when one party is simply dismissed from a case that goes on as the remaining parties. If you are the plaintiff and one of the defendants is dismissed, you must appeal at the time; not from the ultimate “final” judgment.

The definition of a “collateral order” is a bit more involved, and beyond the scope of this article. In general, it requires that three conditions be satisfied: (1) the order directs the performance of an act or the payment of money; (2) the order involve an issue that is wholly collateral to the main issue in the case; and (3) as to that collateral issue, the order is final. (Civil Appeals, § 2.77.)

Ultimately, every time an order is issued, the trial lawyer must consider whether it could be considered “final” and appealable, or within an exception to the one-final judgment rule, or subject to review by statutory writ. When in doubt, it may be worth asking an appellate lawyer.

Mistake 2: Failing to make appropriate evidentiary objections on summary-judgment motions, or to respond to the other side’s objections

A motion for summary judgment or summary adjudication of issues must be supported and opposed by admissible evidence. (Code Civ. Proc., §§ 437c, subd. (b)(1), and (d); Garibay v. Hemmat (2008) 161 Cal.App.4th 735, 741, 74 Cal.Rptr.3d 715, 719.) As explained in the article in this issue by Justice Moore and Steven B. Stevens, objections to evidence in support of or in opposition to a motion for summary judgment or adjudication must follow the format in California Rules of Court 3.1352 and 3.1354.

If you are responding to a summary-judgment motion, pay particular evidence to the moving party’s evidence. If it is not admissible, be sure to raise a proper objection. The objections should be made with the opposition, but the rules also seem to permit raising them “at the hearing.” Be safe, and do it sooner. But don’t go overboard. Only raise evidentiary objections you would be willing to raise at trial. (See, e.g., Nazir v. United Airlines, Inc. (2009) __ Cal.App.4th __, __ Cal.Rptr.3d __, 2009 WL 3235159, 7. [Appellate court, in discussing moving party’s objections to opposing party’s evidence: “Can this be serious? Can counsel see themselves rising at trial with those objections while plaintiff is testifying before a jury?].)

If you don’t raise the objections timely at the hearing on the motion, you won’t be able to raise them later on appeal. Section 437c provides that a party who fails to raise evidentiary objections at the hearing waives those objections on appeal. (Code Civ. Proc. §§ 437c, subds. (b), (d); Mediterranean Const. Co. v. State Farm Fire & Cas. Co. (1998) 66 Cal.App.4th 257, 263, 77 Cal.Rptr.2d 781, 784.)

And while it goes without saying, if the other side raises evidentiary objections to your opposition evidence, read them and be ready to either try to cure the defect, or at least to respond at the hearing. Sometimes, if the problem is simply a lack of foundation, or some other minor issue, a supplemental declaration can cure the problem. If you can cure the problem at the hearing, and you do not do it, it can make it impossible to do so on appeal.

Mistake 3: Failing to get rulings on your evidentiary objections on summary-judgment motions

No matter how well taken your evidentiary objections are, it won’t matter if the trial court does not rule on them. The law places the responsibility for obtaining a ruling on the evidentiary objections on the party making them. If no ruling is made, the objections are deemed waived on appeal. (See, e.g., Demps v. San Francisco Housing Authority (2007) 149 Cal.App.4th 564, 576, 57 Cal.Rptr.3d 204, 212.) The only exception is if the record clearly reflects diligent efforts by counsel to obtain a ruling, and a refusal by the trial court. (City of Long Beach v. Farmers & Merchants Bank (2000) 81 Cal.App.4th 780, 784-785.)

Mistake 4: Failing to state the proper basis for an evidentiary objection at trial

The trial lawyer must make proper, timely objections to evidence at trial, and where appropriate, move to strike. (Civil Appeals, § 8:270.) The lawyer must obtain a ruling on the objection to preserve the issue for appeal. (Id.) The objection must be made on the proper ground. An objection made on one ground does not preserve other grounds for appellate review. (Wegner, Fairbank, Epstein, et al., California Practice Guide – Civil Trials & Evidence (Rutter 2008 rev.) (“Civil Trials”) § 8:3317.) An objection that offers no legal grounds preserves no grounds for review. (Id., § 8:3319.)

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.

Mistake 7: Failing to get the proponent of each proposed instruction on the record

Jury instructions are often hashed out in chambers, in a hurry, shortly before the jury is instructed. If you are not satisfied with any of the final instructions the court has decided to give, be sure that you get the trial court to make a proper record of court’s ruling on jury instructions, either by going on the record or by issuing a minute order. Make sure that the record accurately reflects the proponent of each instruction – you do not want to be accused of inviting error for an instruction you did not propose. Make sure the record reflects the judge’s ruling and rationale, as well as your objections. If the instruction is too general, incomplete, or vague, both object and propose language to cure the problem. (Civil Trials, ¶ 14:225.)

Mistake 8: Failing to make a timely attempt to have a defective or incomplete verdict cured

There is probably no moment in the practice of law more dramatic than when a jury verdict is read. It is understandable that, in that moment, it is very difficult for trial counsel to remain attentive to whether there are any technical flaws in the verdict. But it is critical that this be done, so that any defect in the jury’s verdict can be cured by the jury before they are dismissed. In addition, under section 618 of the Code of Civil Procedure, if more than one-fourth of the jurors disagree with a verdict upon being polled, the jury must be sent out again. But if no disagreement is expressed, the verdict is complete and the jury will be discharged.

Trial counsel must be aware that jurors have the right to change their mind between the time they vote in the jury room, and when they are polled. (Chipman v. Superior Court (1982) 131 Cal.App.3d 263, 266, 182 Cal.Rptr. 123.) Hence if the polling reveals that fewer than 9 jurors voted in favor of a key element on the verdict form, counsel must be alert, and call the issue to the court’s attention, or any objection about the verdict on appeal will be waived. (Keener v. Jeld-Wen, Inc. (2009) 46 Cal.4th 247, 251, 92 Cal.Rptr.3d 862 (2009). In Keener, polling revealed that only 8 jurors agreed with the 80/20 apportionment of fault on the verdict form. But since the issue was not raised before the jury was discharged, it was waived on appeal.

Mistake 9: Failing to make a timely new-trial motion to correct a damage award that is either excessive or inadequate

Ordinarily, errors are not waived on appeal by the failure to make a motion for new trial. (Civil Appeals, ¶ 8:278.) But this rule does not apply for a claim of inadequate or excessive damages. In order to preserve the issue for appeal, you must seek a new trial on damages. (Jamison v. Jamison (2008) 164 Cal.App.4th 714, 719, 79 Cal.Rptr.3d 561.) Beware — this rule applies to both jury trials and to bench trials. (Id. [“A failure to timely move for a new trial ordinarily precludes a party from complaining on appeal that the damages awarded were either excessive or inadequate, whether the case was tried by a jury or by the court.”])

Mistake 10: In federal court, failing to make and renew a judgment as a matter of law if you believe that the verdict is not supported by the evidence

In federal court (but not in a California state court) in order to preserve a challenge to the sufficiency of the evidence to support the verdict in a civil case, a party must make two motions. First, a party must file a pre-verdict motion for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(a); Second, the party must file a post-verdict motion for judgment as a matter of law or, alternatively, a motion for a new trial, under Rule 50(b). (Nitco Holding Corp. v. Boujikian (9th Cir. 2007) 491 F.3d 1086, 1089.) If these steps are not taken, the challenge to the sufficiency of the evidence to support the verdict is forfeited.

Categories: Articles & Briefs

Appellate Passion: Jeffrey Ehrlich has helped set precedent, but he’s proudest of getting one man out of prison.
Los Angeles & San Francisco Daily Journal,
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