"That's You", Part I.
Despite the rain, I appeared early for oral argument in the Court of Appeal that sits in downtown Los Angeles.
My opponent didn't.
When the case was called, the clerk had to tell the Court that the appellants' attorney (the other side) wasn't there yet. So the Court called another case instead.
During that argument, I saw that my counterpart had arrived. We acknowledged each other with a wave.
Our case was called next. I approached Respondent's table. My counterpart stood up, but didn't move. He displayed a quizzical look on his face. Even though he saw me stand up and move to counsel's table, he evidently didn't realize that was his cue to advance as well. Finally, one of the justices said to him, "That's you." I knew this justice had been a Los Angeles Superior Court trial judge who had handled a very famous criminal case some years ago. My opponent's cases were mostly litigated in Los Angeles. I surmised they must have known each other.
In any event, since the other side had appealed, he went first. This same justice picked up with the first argument in my brief: that the appeal should fail because appellants had not filed a motion for new trial in the trial court. He fired a question that went something like this, "Isn't the appeal barred because you didn't bring a motion for new trial?" The answer boiled down to appellants' view that such a motion would be "surplusage" because they brought a flurry of post trial challenges to the trial court's ruling. The same justice then challenged that answer by saying something to the effect of, "Isn't the trial court better positioned to make this determination because it involves weighing credibility?" Appellants' counsel dismissed that inquiry by saying there was no credibility to weigh--it was a simply a matter of applying the law to certain facts.
At my turn, I looked at the appellate justice who asked the first question and remarked that the Court's question was particularly apropos because the trial judge specifically stated that he did not find appellants' story to be "believable" in a crucial respect--the very essence of a credibility determination that cannot be disturbed on appeal. I quoted this part of the statement of decision and also where this quotation appeared in my respondent's brief. I also responded to statements in appellants' reply brief (which could not be responded to earlier). The justices had no questions for me. While my estimated time was five minutes, I concluded with time to spare (taking to heart Justice Scalia's brevity admonition in 2008's Making Your Argument: How to Persuade Judges [reviewed here on December 23, 2008].)
The appellate opinion came out this week. My clients won with a 3-0 decision, affirming the trial court's decision in full. In part two, I will include an excerpt of my Respondent's brief with a comment that another justice made to my counterpart at oral argument.