Latest / Coopers' Code / Lifecycle of a Case, Phase 8B & 9: Post-verdict & Appeals

Transcript

Lifecycle of a Case, Phase 8B & 9: Post-verdict & Appeals · Coopers' Code

• 0:00
  Howdy, and welcome to another episode of Cooper's Code Life
• 0:03
  Cycle of a Case series where we provide tools and tactics for
• 0:08
  the different phases of a case. We're compiling all of these
• 0:11
  episodes into a playlist on our YouTube channel, so head on over
• 0:14
  there if you want to see them all.
• 0:16
  For this section of the life Cycle of a case, we're going to
• 0:19
  be talking about two post trial elements.
• 0:22
  One is post verdict and the others appeal.
• 0:28
  So the post verdict section is relatively straightforward in
• 0:32
  terms of where it falls in the timeline of a case.
• 0:35
  After a trial has been reached and a judgement has been
• 0:38
  entered, there is an opportunity to in essence attack or try to
• 0:44
  undo what the judgement was. One of the first steps in this
• 0:50
  process and and one of the earliest opportunities that one
• 0:55
  has is shortly after the verdict has been read by the jury.
• 1:00
  Usually the judge will allow counsel to step out or even
• 1:07
  sometimes in in the courtroom and talk with the jurors about
• 1:10
  the experience of trying the case.
• 1:13
  And this is an opportunity, if you like the verdict, to have
• 1:18
  conversations with the jurors were both favorable to your
• 1:21
  result or who are against your result to try and gather
• 1:25
  information about how that result was reached.
• 1:29
  A common tactic if you don't like the outcome is to talk to
• 1:33
  the people who were were in your camp voted against what the the
• 1:37
  majority was in terms of the outcome and try and see if
• 1:42
  something was done that was not OK.
• 1:45
  Did they consider information? Did someone bring in outside
• 1:48
  research? Was there something that someone
• 1:51
  didn't disclose in jury selection?
• 1:54
  Sometimes you'll find that what's going on in the jury room
• 1:56
  is something that was not OK. Now that said, there is a
• 2:03
  judicial and and case law bias towards not attacking the jurors
• 2:09
  deliberative process. So just just know that while you
• 2:13
  may see juror declarations in a mode to support a motion for new
• 2:17
  trial, either from the defense or, or from the, the point of
• 2:20
  side that you have to overcome some legal rules related to
• 2:26
  those. So if you like the outcome, then
• 2:32
  one of the things that can be very helpful is talking to the
• 2:36
  jurors who are favorable to your side, letting them know that
• 2:39
  they may get outreach from the other side.
• 2:42
  Look, you did a great job. The defense may be sending
• 2:46
  around investigators or attorneys to interview you and,
• 2:50
  and recognize that when they're doing that, their goal is to
• 2:52
  undo the work that you just did the, the, the weeks that you
• 2:55
  just sat through trial. Their goal is to try and get
• 2:58
  that judgment reversed. And so if they ask you
• 3:00
  questions, know that the direction of those questions is
• 3:04
  to try and see if there's a way to undo things.
• 3:07
  And if they ask you to sign a declaration, it's, it's
• 3:09
  definitely going to be in support of a motion for new
• 3:11
  trial, something to undo what just happened.
• 3:14
  So those are ways to help shore up the results.
• 3:17
  Often times the jurors will leave without wanting to stick
• 3:20
  around. Sometimes it's an exhausting
• 3:23
  process. And then one can take the time
• 3:26
  to to track down jurors and politely reach out to them.
• 3:29
  Phone calls often times are the best ways to do that.
• 3:32
  The four person is typically a a, a clutch person to speak
• 3:36
  with. Jurors who are against you again
• 3:38
  are very useful, even if you won to help hear what might come up
• 3:45
  in terms of a defense attack on the verdict.
• 3:50
  We often times will try to reach out to all 12 jurors and conduct
• 3:54
  post verdict interviews. And that also is is not just for
• 3:58
  the outcome of the case, it's to understand in essence how to
• 4:04
  improve as as a lawyer and how to improve thematically on a
• 4:07
  case. So in a lot of cases, lawyers
• 4:10
  will do focus groups. What one has done with a, a jury
• 4:14
  trial is, is the most expensive and longest focus Group 1 can do
• 4:18
  and getting the benefit of hearing how 1 succeeded in, in
• 4:22
  providing certain evidence, how 1 failed.
• 4:24
  And, and we always want to ask jurors about what could we do to
• 4:27
  improve in terms of how we communicated information.
• 4:31
  I'll share that one of the thematic takeaways that we that
• 4:35
  we've heard from jurors over the years is early in the
• 4:40
  technologic process, there was a concern that people used
• 4:43
  technology might be perceived as too slick.
• 4:46
  And, and what we learned in talking jurors when the defense
• 4:49
  did 0 technology or limited technology and, and we had a lot
• 4:54
  of technology was not that it was a slickness, but that it was
• 4:58
  really helpful that you provided you, the ones with technology
• 5:02
  provided ways for us to easily understand the information.
• 5:06
  So that that's the kind of learning that can, can be
• 5:08
  beneficial as one gathers information from jurors in the
• 5:13
  post verdict world, The things that are you're typically going
• 5:17
  to see is though, there'll be a notice of entry of judgement
• 5:20
  that comes after the, the, the verdict.
• 5:24
  So the verdict gets turned into a, a judgement and there's the
• 5:26
  notice of entry of judgement. That's the, that's what starts
• 5:29
  the time clock. And once that notice of entry of
• 5:31
  judgement is entered, then the deadlines for motion for new
• 5:35
  trial, motion for judgement notwithstanding the verdict,
• 5:39
  memorandums of costs, motions to tax costs and the notice of
• 5:42
  appeal, all those clock off of the notice of entry of
• 5:45
  judgement. The emotions for new trial and
• 5:49
  motion for judgement notwithstanding the verdict are
• 5:51
  are two motions that can be made to try to undo the verdict
• 5:57
  itself. Those are made almost always by
• 6:02
  the side who does not like the outcome.
• 6:05
  They fortunately are not, I won't say rare, but it's it's
• 6:10
  less common that those are granted and and typically there
• 6:14
  needs to have been something wrong done in the trial.
• 6:18
  And so that's an area where if you feel something was wrong,
• 6:22
  you want to make sure that you you point that out.
• 6:24
  If you want to preserve things for appeal and you want to have
• 6:27
  good appellate arguments, it's, it's always wise to make sure
• 6:30
  that you have done everything you can to, to bring things
• 6:33
  forward in the trial courts and give the the trial judge the
• 6:35
  opportunity to correct those things before you take them up
• 6:37
  on appeal. This also is a good time to
• 6:42
  engage with appellate counsel it particularly if you if you don't
• 6:46
  like the outcome. That said, the best time to have
• 6:50
  access to appellate counsel is is early in the case.
• 6:53
  If you have somebody who you work with, just making sure in
• 6:56
  your motions in lemonade or any key evidentiary issues that you
• 7:00
  are going down the right path. What do I mean by this?
• 7:04
  Sometimes you might have a wobbler evidentiary issue, so
• 7:09
  you push to get evidence put into the trial to prevail, only
• 7:14
  to find out that that wobbler evidentiary issue is, is one
• 7:16
  that then becomes grounds for appeal.
• 7:19
  Or or even worse, your case and your firm get associated with a
• 7:25
  result at the appellate court level that sends your case back
• 7:29
  from your trial. And then everyone out on the the
• 7:31
  plaintiffs bar knows that you know, you've now set this, this
• 7:35
  rule that you you don't want to have associated with with your
• 7:38
  outcome. So working with appellate
• 7:41
  counsel early in the process to if you have any odd evidentiary
• 7:46
  issues can can be very useful. It's also the right time to to
• 7:50
  start talking to appellate counsel.
• 7:51
  Even if you plan on doing your own appeal in house, say that
• 7:55
  the case doesn't justify hiring on appellate counsel.
• 7:59
  It's going to be a stretch on the cost side.
• 8:01
  It can be wise to pay by the hour just to to consult with
• 8:05
  someone so that you got IS and crossed T's on the appellate
• 8:08
  side. Beyond the motion for new trial
• 8:11
  and and motion for judgement notwithstanding the verdict,
• 8:14
  there's the memorandum of costs. So if you are the prevailing
• 8:17
  party, you're going to prepare the memorandum of costs.
• 8:20
  You're going to want to include all the things that you're
• 8:22
  entitled to there. This is where having good record
• 8:25
  keeping is clutch because you don't want to be in a situation
• 8:29
  where you're digging through boxes of receipts or going
• 8:33
  through emails to try and find bills or other things.
• 8:37
  So having a great bookkeeping system is a very good way to
• 8:42
  make sure that that that memorandum of costs is easy to
• 8:45
  pull together the standard prevailing party costs and, and
• 8:50
  recognize that I'm, I'm going off the cuff, I'm not reading
• 8:54
  through a statute when I'm saying this.
• 8:55
  So make sure that you look at the statute when you're doing
• 8:57
  this yourself. But there's a difference between
• 9:01
  beating a form off a compromise under Code of Civil Procedure
• 9:05
  998, also known as 998 costs, and prevailing party costs.
• 9:11
  Prevailing party costs are kind of the standard things.
• 9:16
  So jury fees, court reporter fees, filing fees, motion fees,
• 9:23
  deposition costs. Now those can add up those,
• 9:26
  those have value, but really the, the great thing to have in
• 9:31
  your arsenal is a formal offer to compromise A998 number that
• 9:36
  you've beaten in the case. So let's say at some point in
• 9:40
  the case you sent out that formal offer to compromise AT998
• 9:43
  for $100,000 and your your verdict is 125 and you had
• 9:49
  $20,000 in expert costs because you had to bring your expert to
• 9:51
  testify and and take depositions.
• 9:54
  Those costs that you expend on an expert on exhibits on other
• 10:00
  things that you you get as a prevailing party under CCP 998,
• 10:07
  you get those as long as you made those expenditures before
• 10:11
  the the 998 was issued. So this goes back to strategic
• 10:15
  timing on 9/9 eights. We always want to try and get a
• 10:18
  998 out before we're doing big expert expenditures.
• 10:22
  So in a perfect world, before the experts are doing a lot of
• 10:26
  work, definitely before you have the experts preparing for
• 10:30
  deposition and then being deposed, that then insulates you
• 10:33
  on those expert costs should you have to try the case.
• 10:37
  So you gather all that information into a memorandum of
• 10:39
  costs, you have all supporting documentation guaranteed you're
• 10:43
  going to get what is known as a motion tax costs from the other
• 10:46
  side. So, and, and the flip side is
• 10:49
  true. If the defense gets to put
• 10:52
  forward a memorandum of costs, you're going to want to most
• 10:55
  likely do a motion tax costs to try and, and go through and
• 10:58
  parse and make sure that things that should not be included are
• 11:04
  not being included in that that motion.
• 11:07
  The other piece and we, we talked about 99 eights before,
• 11:10
  but you get that 10% interest. And so when you're prevailing on
• 11:13
  a formal offer to compromise, you want to make sure that you
• 11:16
  include that 10% interest from the the date of service of the
• 11:19
  998. Some people include that as
• 11:22
  memorandum of costs. Some others do a a motion for
• 11:27
  costs under Section 998 in addition to the memorandum of
• 11:31
  costs. I've seen both whatever the
• 11:35
  court is willing to accept and whatever works is, is, is the
• 11:38
  way to go with that. So that's in essence the, the,
• 11:42
  the post verdict dance. One then gets to what are known
• 11:50
  as as appeals. So there are a variety of ways
• 11:57
  to handle appeals. Typically, even if one
• 12:01
  outsources the appellate work to a appellate specialist, there's
• 12:08
  still going to be work that that needs to be done by the the
• 12:11
  trial team in the case that the trial team is going to know the
• 12:13
  facts and know what happened in the case far better than than
• 12:17
  anyone else. So that that said, we usually
• 12:21
  retain an appellate lawyer. We may work on the statement of
• 12:24
  facts or other pieces ourselves in order to contain some of the
• 12:28
  appellate costs because appellate lawyers usually are,
• 12:31
  are doing work on an hourly basis.
• 12:34
  So just consider that as, as you're building your team, the
• 12:39
  appellate lawyers, sometimes some appellate lawyers will be
• 12:44
  willing to do a contingent fee. If you have cost issues or if
• 12:49
  your client has cost concerns and that's an an option, then
• 12:54
  you can consider striking a deal with an appellate lawyer.
• 12:56
  As far as that's concerned. Obviously the appellate lawyer
• 12:59
  is going to want to know the, the facts of the case, the law
• 13:01
  of the case. And the more likely one is to
• 13:04
  prevail on the appeal, the more likely the appellate lawyer is,
• 13:07
  is willing to do some form of contingent fee on that, that 10%
• 13:11
  interest that you get from A998. You also get wall cases up on
• 13:17
  appeal. So one of the things to think
• 13:20
  about is, well, one might be frustrated that you get a good
• 13:24
  verdict and the defense appeals that there's no other place
• 13:27
  right now that that I know of where you're going to be getting
• 13:29
  guaranteed 10% interest on. So that 10% interest can be a
• 13:34
  gift to the firm and to the client while that case goes
• 13:37
  through the appellate process. Presuming 1 is is going to
• 13:40
  prevail. There have been appellate
• 13:44
  mediations in, in a lot of the districts that's been a way
• 13:47
  that, that the districts will try to clean up their docket and
• 13:52
  and reduce the number of cases there.
• 13:55
  That process is typically happens with your case getting
• 13:59
  flagged. So well, one can always engage
• 14:02
  in in informal negotiations with the other side in terms of would
• 14:06
  you like to go to a mediation while it's up on appeal.
• 14:09
  Sometimes your case will just be flagged and and there will be an
• 14:11
  appellate mediation process. It's typically through not your
• 14:16
  usual mediators, but through a panel that the appellate
• 14:19
  district has available. Those can be productive.
• 14:23
  They also are ways to to kind of hear from some of the people who
• 14:27
  are more of an involved with that district as do the
• 14:29
  strengths and weaknesses within a case.
• 14:32
  Appeals tend to be different than our our usual cases in
• 14:38
  terms of extensions. And what what do I mean by that?
• 14:42
  When your brief is due, often times you can request an
• 14:45
  extension. The extensions tend to be more
• 14:48
  liberally granted. Now that varies district by
• 14:52
  district and presiding justice by presiding justice in terms of
• 14:57
  the panel within the district's side note, and I didn't cover
• 15:00
  this, within each appellate district there will be different
• 15:04
  panels. So the the appeals process is is
• 15:07
  heard by a three justice panel. Again, I'm talking California
• 15:11
  appellate process, not the federal appellate process.
• 15:15
  But in the California appellate process, there are panels within
• 15:19
  the district. So if you're in the appellate
• 15:21
  district one, there may be 567 panels and an appellate layer
• 15:26
  would have those numbers right at the tip of their tongue.
• 15:30
  The different panels often times will have get different
• 15:33
  reputations in terms of how many extensions they grant, whether
• 15:36
  they they learn more conservative, more liberal, and
• 15:39
  whether they they do things like issue tentative opinions or
• 15:43
  letters, because some of them do that now.
• 15:47
  And for those who don't spend a lot of time in appellate court,
• 15:50
  this was something that was a relatively new learning for me.
• 15:54
  I went to an appellate seminar probably four or five months
• 15:58
  ago. It was really interesting to
• 16:00
  hear that the appellate courts have started to recognize the
• 16:02
  benefit of doing tentative opinions or, or, or letters.
• 16:07
  And So what are these? In the week or so before oral
• 16:11
  argument, they will sometimes issue a tenor of opinion.
• 16:14
  This is the direction that we are planning on going so that
• 16:17
  when you show up at the hearing, these are the issues that would
• 16:22
  be beneficial for you to address, whether you, if you
• 16:25
  like them with your argument to strengthen the these positions
• 16:29
  or if you don't like them. What cases or or facts undercut
• 16:33
  the tenor of opinion? The same is true with with
• 16:36
  letters. Sometimes some of the panels
• 16:39
  will issue a letter stating we'd love to know more information
• 16:43
  about this issue and that sometimes can be an invitation
• 16:47
  for the briefing or just an advisement that these are the
• 16:50
  types of things that they want to hear at the oral argument.
• 16:52
  Oral argument in appellate court is this, these are the words of
• 16:57
  somebody who who does not do a lot of appellate work.
• 17:00
  I would describe it as much like 1's law school new court
• 17:03
  experience or the most prepared law and motion hearing one has
• 17:08
  ever done. So going in there being ready to
• 17:14
  address the court's questions, honor their questions and and
• 17:17
  make sure that even if one disagrees with the direction of
• 17:20
  the question, that one has a good response.
• 17:24
  And in essence, being deeply seasoned, deeply rooted in, in
• 17:28
  the case, once an opinion is issued in the appellate court,
• 17:32
  that opinion then can be subjected to a a petition for
• 17:36
  review by the California Supreme Court.
• 17:38
  That is not granted in every single case.
• 17:40
  In fact, it's fairly rare that it's granted, but sometimes it
• 17:43
  happens while that petition is being submitted, the there's a
• 17:47
  delay in terms of that appellate ruling being final.
• 17:50
  Presuming the Supreme Court does not pick it up, then the, the
• 17:54
  opinion becomes final. If the judgement is the, the
• 17:58
  trial court's judgement is upheld, then you know, it's off
• 18:03
  to the races in terms of presuming that there was a
• 18:06
  judgement in, in your favor. It's off to the races in terms
• 18:09
  of the collection of that judgement.
• 18:10
  Sometimes it's reversed or partially reversed for some
• 18:13
  issues. Then it goes back for, for new
• 18:15
  trial and one gets the joy of, of trying a case a second time.
• 18:22
  Side note on, on trying cases a second time that they can be
• 18:25
  sometimes be beneficial because one has a lot more information
• 18:30
  about what resonated and what didn't resonate.
• 18:32
  It also gives the other side an insight into how you tried the
• 18:36
  case. And so just know that that
• 18:39
  second trial can, can be a daunting experience in terms of,
• 18:42
  of, of having to do that again. And with that, I believe we've
• 18:47
  covered the post verdict and appeals process.
• 18:53
  Thank you for tuning in. If you enjoyed this, check out
• 18:56
  our previous episodes. More will be coming soon.
• 18:59
  If you're enjoying what we're doing here with Cooper's code,
• 19:01
  please help us extend our reach by giving us a five star review
• 19:04
  on Apple Podcasts and consider sharing an episode with a
• 19:06
  friend. Please e-mail us at podcast at
• 19:09
  Cooper's dot law with questions, comments, feedback, and
• 19:12
  suggestions you have for who you'd like to see on the show.
• 19:15
  To all of you doing justice out there, happy hunting.