This is the property of the Daily Journal Corporation and fully protected by copyright. It is made available only to Daily Journal subscribers for personal or collaborative purposes and may not be distributed, reproduced, modified, stored or transferred without written permission. Please click "Reprint" to order presentation-ready copies to distribute to clients or use in commercial marketing materials or for permission to post on a website. and copyright (showing year of publication) at the bottom.

general / Appellate Practice

Be careful what you wish for

Shutterstock

MOSKOVITZ ON APPEALS

When appellate attorneys discuss case law, we often focus on an opinion's reasoning. Judicial reasoning is the grist of our craft. We analogize or distinguish it -- depending on which side retained us.

Yet our clients don't care a whit about the appellate court's reasoning. They want to know: Did I win? And that question is answered by the opinion's disposition. That is "the part of the opinion where [the justices] deliver the goods." Ducoing Management, Inc. v. Superior Court, 234 Cal. App. 4th 306, 312 (2015). It appears at the end of the opinion and delivers the actual judgment of the court.

The disposition is critical. After all, everything that precedes it in an opinion (i.e., facts, law and reasoning) is merely an explanation of why the court arrived at its disposition. The disposition, by contrast, is actually an order that affects the legal rights of the parties. That is why it appears again in the "remittitur," which returns jurisdiction to the lower court once the appellate opinion is final. The dispositional language in the remittitur "defines the scope of the jurisdiction of the court to which the matter is returned." Griset v. Fair Political Practices Com'n, 25 Cal. 4th 688, 701 (2001). Subsequent lower court actions that conflict with the remittitur are void. Ibid.

And dispositions come in many different flavors. The two most obvious are affirmance and reversal. A full affirmance upholds the lower court judgment and usually ends the litigation (except for housekeeping matters such as cost and attorney fees awards). A full reversal, by contrast, typically erases the lower court judgment and sets the case for a new trial.

Yet an appellate court is not limited to those options -- it can also "modify any judgment or order appealed from, and may direct the proper judgment or order to be entered, or direct a new trial or further proceedings to be had." Code Civ. Proc. Section 43.

One useful way to group dispositions is what comes after them. Some dispositions end the litigation. Other dispositions direct further lower court proceedings, but on fewer issues than were originally litigated. This basic distinction should inform counsel's strategy in asking for particular dispositions.

"The Case Stops Here": Litigation-Ending Dispositions

An affirmance isn't the only type of disposition that ends litigation.

Sometimes an appellant can achieve full victory on appeal without having to return to the trial court. A common example results from an appellate court reversing a JNOV, which requires the trial court upon remand to restore the judgment as dictated by the jury. Code Civ. Proc. Section 629.

But even if the appellant did not file a JNOV motion below, an appellate court can still hand the appellant a conclusive victory in some cases. "An appellate court may reverse a judgment with directions to enter a different judgment if it appears from the record that no new evidence of significance would be presented in a new trial and there is only one proper judgment." Singh v. Southland Stone, U.S.A., Inc., 186 Cal. App. 4th 338, 357 (2010).

A judgment modification also ends litigation. Any time the record on appeal "is sufficiently definite" to decide the rights of the parties, an appellate court may modify the judgment and affirm it to "avoid subjecting the parties to any further delay or expense." Sagadin v. Ripper, 175 Cal. App. 3d 1141, 1170 (1985). This can happen when the evidence supports some, but not all, of a plaintiff's compensatory damages.

"The Show Goes On": Limited Remands

A disposition can also direct the trial court to conduct further proceedings. A partial reversal, for example, explicitly directs the trial court what to do upon remand. An appeals court can affirm the judgment as to some causes of action, reverse the judgment as to other causes of action, and direct a new trial on those reversed claims. Or an appeals court can affirm compensatory damages, but direct a new trial on punitive damages. The appeals court can even dictate which one of two alternative judgments the trial court must enter, depending on the results of the trial court's fact finding.

Keep in mind, though, that an appellate court can partially reverse only if the issues to be retried are severable from the other issues.

Tips for Appellants

Appellants can err by thinking that a full reversal is the best possible outcome. After all, the resulting trial will cost a lot more time and money -- and could culminate in the same adverse result as the first trial.

So consider if the Court of Appeal can rule in some favorable way that ends the litigation. Perhaps there is no evidence on an essential element, and the plaintiff will not be able to produce that evidence upon retrial. Or perhaps the correct amount of damages is discernible so a modification of the judgment will suffice.

In case the appellate court doesn't want to go that far, you should also suggest alternative dispositions. That gives the court a roadmap and builds your credibility.

Tips for Respondents

For respondents, anything less than a full affirmance can be disappointing. But it's smart to plan for damage control upfront.

If one ruling by the trial court is shaky, suggest that any reversal should be limited to that single ruling. Or if there is a chance the Court of Appeal will reverse and enter judgment against you, urge that factual issues require retrial.

Oral Argument that Actually Matters

Given that California Courts of Appeal have written their draft opinions before oral argument, the argument itself can seem like Kabuki theater. Even at that late stage, though, many Justices have not made up their mind about the proper disposition. So a key use for oral argument is educating the panel about exactly how they should "deliver the goods."

Conclusion

A good brief should make a Justice's life easier. Especially when an appeal involves a convoluted procedural posture, wise appellate counsel will guide the court to their ideal (and backup) outcomes. And that guidance should appear in the conclusion of the opening and responsive briefs.

#357

Ben Armistead


Related Tests for Appellate practice

general/Appellate Practice

It's Groban

participatory/Appellate Practice

What Interests the Public?


participatory/Appellate Practice

With a Lot of Help From Their Friends

participatory/Appellate Practice

An Uncertain Climate for Environmental Suits


participatory/Appellate Practice

Empirical Kavanaugh

general/Appellate Practice

Slumming it with facts on appeal, part 2 — going to the 909

By Benjamin G. Shatz

general/Appellate Practice

Immigration Roundup