California Appellate Lawyer & Attorney : Archer Norris Law Firm : Trial, Business, Torts : Sacramento, Bay Area, Los Angeles, California

Fourth District decision seems obvious -- if you want to hold your employees to an arbitration agreement -- having them actually sign an agreement is necessary.   But having run a small business myself, I know all too well how often this does not happen.

So, here is your friendly reminder that those employee handbooks, while necessary and useful, are not the end all be all of your HR Departments.  Is it time to review those employee agreements?

Mitri v. Arnel Management Company (Dec. 12, 2007) :  Employees sued management company for sexual discrimination and harassment.  The employer tried to enforce an arbitration agreement based solely on the language of the employee handbook requiring arbitration.  Court says "not happening" without an agreement to arbitrate signed by each employee.

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I couldn't have said it better. 

Scott Greenfield at Simple Justice explains the evolution of trial lawyers versus appellate lawyers.

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In two separate decisions yesterday, the Second District issued a strong reminder of the difference between raising a triable issue of fact and proving elements of a cause of action on summary judgment.

In Nielsen v. Beck (Los Angeles County Super. Ct. No. BC339322) the found that there remained a triable issue of fact as to whether an attorney continued to represent his client beyond a substitution of attorneys.  The trial court ruled that continued conversation between counsel and his former client did not establish a triable issue of fact sufficient to defeat defendants’ claim that the cause of action was barred by the statute of limitations.  The court disagreed, finding triable issues of fact as to the scope of the attorney’s continuing relationship with his client and regarding the actual date of termination of that relationship.  

In Raven v. Gamette (Los Angeles County Super. Ct. No. BC337558), a tenant sued her landowner for negligent failure to secure the rental premises in light of previous criminal activity.  The landlord brought a motion for summary judgment arguing that his tenant could not prove a causal link between her injuries and his failure to take safety precautions.  The trial court agreed, ruling that plaintiff had “failed to submit admissible evidence establishing a causal link between her injuries . . . and . . . decedent’s alleged breach of duty [and t]hus, plaintiff failed to establish the element of causation in her cause of action for negligence.”  

The Second District overturned the decision admonishing, “In order to defeat defendant’s summary judgment motion, plaintiff only needed to raise a triable issue of material fact as to the issue of causation; she did not need to establish that element of her negligence cause of action.” (Emphasis added).

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 . . . and I was still writing my opening brief.

From the day we enter law school we hear the mantra "simplify simplify simplify".   In honor of "simplicity" this holiday season, Howard Posner, an appellate attorney in Los Angeles, wrote a great article for California Lawyer Magazine about avoiding getting bogged down in words.

Posner writes about a holiday evening as he sits down to read "Harry Potter and the Demurrer of Doom" when he is visited by the ghost of his still practicing law partner who is dragging the chains of his verbosity . . .

"Dreadful apparition, why do you trouble me?"  I started to exclaim, but the words died in my throat because, on second thought, they sounded lame."

I had a good chuckle (Would that be Ho!Ho!Ho!?) and a solid reminder to Keep It Simple!  Read the full story here and many holiday wishes to Mr. Posner.

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While most attorneys strive to write well-argued briefs on substantially justified legal theories (yes, I am an optimist), I don’t believe even the most conscientious of us realized that years ago, the Ninth Circuit created the “Slubby Mass” rule regarding the filings of appellate briefs:

"In order to give fair consideration to those who call upon us for justice, we must insist that parties do not clog the system by presenting us with a slubby mass of words rather than a true brief."  N/S Corp v. Liberty Mutual Ins. Co. (9^th. Cir 1997) 127 F.3d 1145, 1146. (Emphasis added.)

Have Opinion Will Travel does a great job of summarizing this esteemed line of jurisprudence here, and bears no repeating. However, the First District has apparently adopted the Ninth Circuit’s impatience with frivolous appeals.

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I am used to blank stares when -- in response to the typical question of “What kind of law do you practice?” -- I tell people that I am an appellate lawyer.

There are no “appellate lawyers” on Boston Legal or Law and Order. Its been awhile since I’ve seen an episode of Ally McBeal, but I don’t recall any there either. Its disconcerting, however, when I get that same stare from my colleagues.

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There are few resources -- either online or in our rapidly diminishing libraries --that offer guidance on protecting your client’s case on appeal while you develop your case at the trial court level. Most practitioners wait until after the trial court has already ruled on a particular issue before evaluating the potential outcome of appellate review of the issue. How the issue is presented to the trial court before it is ruled upon significantly impacts the manner in which the issue is considered by the appellate court. This blog is intended to offer some insight as how to best present such issues at the trial level so that their merits are given maximum consideration at the appellate level.    

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