Law Religion Culture Review

Exploring the intersections of law, religion and culture. Copyright by Richard J. Radcliffe. All rights reserved.

Friday, January 23, 2009


Although I’ve never done any alpine climbing, I have a healthy respect for, and knowledge about, it. I’ve read numerous books on climbing, including Jon Krakauer’s Eiger Dreams and Into Thin Air. I’ve also enjoyed many movies involving the topic, including Eiger Sanction and K2. So, I surmise it was inevitable that this interest would seep into my brief writing. Here’s the introduction from an appellate brief I filed late last year drawing on the theme (see, in particular, bolding):

"'After climbing a great hill, one only finds that there are
many more hills to climb

--Nelson Mandela

The appeal of Appellant [ ] presents a similarly arduous task. It must surmount multiple peaks in order to ultimately prevail.

In the first consolidated appeal [omitted case numbers], this Court reversed solely to have the trial court issue a statement of decision and judgment thereon. (2008 Appellant’s Appendix [“AA”], p. 3.) [footnote omitted.] This Court reversed even though Appellant’s request, “Can we ask for a Statement of Decision?” (RT 317:20) was “ambiguous”, “defective” and failed to “specify those controverted issues as to which the party is requesting a statement of decision.” (2008 AA, pp. 5-6.)

As to the underlying Judgment (apart from the much later post-judgment ex parte orders), this Court merely indicated that “the evidence [ ] be sifted and weighed in a statement of decision.” (2008 AA, p. 10.)

Thereafter, the trial court issued an evidentially detailed 28-page statement of decision addressing the principal controverted issues of the underlying trial: (a) whether the burden shifted to Appellant to prove that the Amendments and Restatements, dated March 8, 2002, to the [ ] Living Trust, dated August 3, 1999, were not the product of undue influence; (b) whether Appellant met this burden; and (c) whether the trust amendments were obtained by [Appellant’s] undue influence. (2008 AA, pp. 43-45, 49-70.) The trial court amply supported its statement of decision with myriad citations to evidence including trial exhibits and witness testimony, and made key determinations concerning witness credibility, demonstrating a careful sifting and weighing of the evidence. Among other things, the trial court crucially found [Appellant] not credible in light of [his] “continually” “conflicting testimony”. (2008 AA, p. 62; see also p. 61.) Appellant explicitly asks this Court to override and substitute its own credibility determinations for those of the trial court regarding at least two pivotal witnesses, [Appellant] and the drafting attorney, [K]. (OB, pp. 44-45, 49.)

Despite possessing the statement of decision this Court ordered, Appellant is still dissatisfied. Appellant demands another reversal claiming the lengthy statement of decision did “none” of the things it was supposed to do. (OB, p. 21.)

Additionally, Appellant asserts that the Judgment was not supported by “substantial evidence.” Because Appellant has mounted an insufficiency of the evidence challenge, he bears an especially “daunting burden” (Marriage of Higinbotham (1988) 203 Cal.App.3d 322, 328-29 [249 Cal.Rptr. 798].) This burden is made even more daunting because Appellant must show that the presumption of undue influence never shifted to Appellant (contrary to the trial court’s determination), that Appellant somehow met this burden by showing the trust amendments were not obtained by [Appelant’s] undue influence, and even if the burden was not shifted, Appellant must overcome the trial court’s findings of “clear and convincing” evidence that [Appellant] exerted undue influence in obtaining the trust amendments at issue.

In attempting to summit these Himalayan heights, Appellant misapplies the applicable law (even that explicated by this Court in its ruling [2008 AA, p. 9]), ignores reams of evidence (despite his burden to present it in his Opening Brief), and disregards factual findings on which the trial court relied in finding for Respondent [ ].

Appellant has failed to meet his towering burden. This Court should affirm."