Law Religion Culture Review

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

Wednesday, April 08, 2009

Summiting, Part II.

In Summiting (Part I), I provided excerpts from my Respondent's brief:

In this brief, I adopted an alpine climbing theme and started with a Nelson Mandela quote: “After climbing a great hill, one only finds that there are many more hills to climb.”

To switch things up at oral argument (since it's a good idea not to repeat one's brief), I quoted Randy Pausch, the late Carnegie-Mellon professor, who alighted the world with his "Last Lecture" viral video and book.

As Dr. Pausch said, "If there is an elephant in the room, introduce it." I then posited that the trial court's statement of decision, spanning 28 pages--replete with evidentiary citations and credibility determinations--was the proverbial "elephant in the room" in this case. Appellant could not get around the myriad exhibits and testimony relied upon in the document, as much as he wished to ignore it.

In its opinion today (affirming in favor of my client 3-0), the appellate court adopted my arguments that (1) Appellant had waived his insufficiency of the evidence argument by not citing all of the evidence favoring the decision (or even acknowledging its existence in the statement of decision); and (2) even if Appellant hadn't waived the argument, the evidence cited in the statement of decision more than amply supported the judgment.

At oral argument, Appellant's counsel (a certified appellate specialist) in part tried to undermine the trial court's determination by claiming that the trial court got a fact wrong. When it was my turn, I corrected this allegation by noting that the trial court nowhere made such a finding or relied on said "fact", but rather based its ruling for that issue on seven (7) other evidences, which I cited from the statement of decision--the "elephant in the room". You could have heard a pin drop when that evisceration was complete. Not surprisingly, these seven evidences were quoted in the opinion--with enumeration.