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The Difference Between Trial and Appellate Practice

By Craig LaChance

Suppose you have a case that went to trial, and you are facing an appeal. Either you lost and want to appeal the decision, or you won, but your opponent has vowed to appeal. In any event, the case is going to the next level. Should your trial lawyer handle the appeal? After all, your trial lawyer has worked on the case for months, perhaps years, and will know the facts and law intimately. In fact, your trial lawyer probably crafted many of the arguments that may be raised on appeal. What is more, having gone to battle with your trial counsel, you’re comfortable with them and trust their judgment. If your trial counsel has appellate experience, then having them handle the appeal may be advisable.[1]

But if they don’t do appeals, you want to consider counsel who specializes in them. Trial and appellate work are quite different. Being a great trial lawyer does not make one a great appellate advocate. As federal appellate judge Ruggero J. Aldisert notes, a successful trial lawyer is a salesperson whose objective is to persuade a panel of lay jurors that their client’s witnesses are credible and that the facts favor their side.[2] Trial advocacy typically involves more than legal argument; it often involves emotional appeals to create a sense of righteousness. Much trial advocacy is verbal. Thus, argument is more fluid, organic, and less focused on analysis of legal concepts.
Always Be Closing
“The only thing you got in this world is what you can sell.” Arthur Miller, Death of a Salesman.

An appellate lawyer, on the other hand, “is still a salesperson, but the lawyer carries a different sample case.”[3] Instead of juries, the audience in an appeal is a panel of professional judges. Also, while trial argument is primarily verbal, appellate advocacy is generally written. Where a trial brief is typically less than 10 pages, appellate briefs often run to 30 pages or more. As Judge Aldisert notes, appellate advocacy is really a dialogue between professional writers (appellate attorneys) and professional readers (judges). To be sure, appellate lawyers present oral arguments, but these arguments are extremely circumscribed, often only 15 to 20 minutes; compare this with the days or even weeks a trial lawyer gets to make their case. Additionally, appellate work focuses on the law rather than facts. This results in often abstract arguments concerning policy, history, legislative intent and the analysis of legal concepts. Good appellate attorneys are often reflective, analytical and introverted—traits that are not often associated with the fireworks of a trial courtroom.

This is not to say that trial lawyers are not thoughtful or that appellate attorneys are shut-ins. Nor is it that trial lawyers cannot be successful appellate attorneys, or vice versa. Indeed, there is quite a bit of overlap in trial and appellate skills. The point is that the differences between trial and appellate practice are important and are a factor in successful appeals.

 


Footnotes

[1]  See Michael J. Meehan, “Appellate Advocacy,” in Arizona Appellate Handbook, vol. 1, §2.3, 2-4 (4th ed. 2010) (“If at all possible, every appeal should be done by a lawyer with appellate practice experience”).

[2]  Ruggero J. Aldisert, Winning on Appeal, 4 (NITA 1996).

[3]  Id. at 5.

Do you Have an Antitrust Claim?

By Craig LaChance

Monopoly man and Mr. BurnsMost people have, at best, only a vague understanding of antitrust law. They know it has something to do with monopolies and competition.[1] Perhaps they recall something about antitrust from an American history course—e.g., Standard Oil, 19th century railroad conglomerations, trust-busting politicians. Occasionally, one hears of antitrust in the news when the Justice Department nixes a merger of say, airlines or cable companies. The general perception is that antitrust seeks to keep companies from getting too big and driving smaller firms out of business. This was, in fact, the intent when Congress enacted the first antitrust laws in 1890. But things have changed in the intervening century. Size, market share — indeed, even predatory business practices — are no longer determinative in an antitrust case. Just because a large company has tried to drive a smaller competitor out of business — i.e., to exclude the competitor from the market — may not mean the company has violated the antitrust laws. Exclusionary conduct is a necessary but not a sufficient condition of an antitrust claim. In addition to exclusionary behavior, an antitrust claimant must prove, above all else, that the behavior harmed consumers.

Consumer welfare has always had some role in antitrust policy. Initially, however, it was a bit player. As historian Richard Hofstadter has noted, when Congress first enacted antitrust legislation it had three goals in mind.[2] The first was economic. Classical economic theory held that competition produces the maximum amount of economic efficiency, so antitrust policy sought to ensure a competitive — that is, lots of players — market. The second goal was political. Huge concentrations of wealth and power were viewed as a threat to democratic government.[3] Corporations had grown so big so fast many feared business could become more powerful than civil government. Antitrust’s third goal was social and moral. Competition was believed to engender discipline. The American character had been “forged by competitive individualism.”[4] To foster this discipline, Congress needed to ensure the game was not rigged.
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But as time went on, two of those goals — political and moral — fell by the wayside. Corporations, of course, continued to grow and continued to exert political influence. Yet by the middle of the 20 Century, the public was less concerned about size. The initial shock over the power and size of big business wore off. What’s more, what “really made bigness palatable more than anything else is the remarkable performance of the economy since the beginning of the Second World War.”[5] Likewise, the notion that American character required the discipline of entrepreneurial individualism lost salience. Acquiring specialized skills and advancement through a bureaucratic career, often in a big corporation, became the ideal.[6]

This left only antitrust’s economic goal, but even the nature of that goal changed. The initial meaning of this economic goal was confused, but the general notion was that competition meant a market with a lot of players. The more rivals, the more competitive the market. Thus, in a sense, antitrust policy sought to ensure that the market had a certain number of competitors. But as economists studied antitrust policy, they came to believe that the number of competitors did not necessarily mean more efficiency. As two preeminent antitrust scholars put it: “A market with three sellers but an output of 100 units per day is more competitive than one with ten sellers but an output of 80 units per day.”[7] Thus, economists and judges reconceptualized competition in terms of consumer welfare. A market is competitive when it maximizes consumer welfare, that is, the market is characterized by low prices and high quality. Accordingly, the real goal of antitrust policy is to maximize consumer welfare.[8]

So what does this mean for the antitrust claimant? How does one bring an effective antitrust suit? A competitor’s size or market share alone will not cut it. Additionally, improper, even predatory, actions by themselves may not be enough. Just because you have been harmed by the acts of a competitor — i.e., lost market share — does not necessarily mean you have an antitrust claim (although you may have common law claims for unfair competition). The market is rough; firms lose business to more successful firms all the time. To assert an antitrust claim, a company must prove that a large competitor’s acts have actually harmed consumers. This means there must be proof that prices for a product have gone up, that quality has declined, that consumer preference has been thwarted. Absent this kind of evidence, an antitrust claim will likely falter.


Footnotes

[1] That the U.S. refers to this area of law as antitrust and not—like the rest of the world—as monopoly or competition law is an accident of history. Monopolies were particularly flagrant in late 19th century America. Richard Hofstadter, “What Happened to the Antitrust Movement,” in The Paranoid Style in American Politics and Other Essays, 195 (Harvard 1964). American business first colluded and combined by means of a simple common law trust. Instead of mergers, corporations in a particular industry would place shares of their businesses in a trust with a trustee managing the conglomeration. See Phillip E. Areeda & Herbert Hovenkamp, Antitrust Law: An Analysis of Antitrust Principles and Their Application, vol. I,  (Aspen 3d ed. 2006). Thus, to oppose this type of collusion was to be “anti-trust.”

[2]  Hofstadter, supra n.1 at 199.

[3]  See Louis D. Brandeis, Other People’s Money: and How the Bankers Use It (Martino 2009), which has a chapter entitled “The Curse of Bigness.” Brandeis’s views were common at the time. As his biographer writes, “ Brandeis opposed large businesses because he believe that great size, either in government or the private sector, posed dangers to democratic society and to individual opportunity.” Melvin I. Urofsky, Louis D. Brandeis A Life, 300 (Pantheon 2009).

[4]  Hofstadter, supra n.1 at 209.

[5] Id. at 215. Also, any worries about big business threatening government were likely offset by the simultaneous growth of government.

[6] Id. at 219.

[7] Areeda & Hovenkamp, supra n. 1, vol. I, ¶ 100, 3.

[8] Robert H. Bork, The Antitrust Paradox: A Policy at War With Itself, 427 (Free Press 1993).

Should You Worry About the Rule Against Perpetuities?

Body Heat Movie PosterBy Craig LaChance

The 1981 film Body Heat is great for many reasons. It stars William Hurt, right at the beginning of his 80’s peak. The film also features Kathleen Turner in a smoldering debut. Body Heat was the directorial debut of Lawrence Kasdan fresh from serving as screenwriter for two iconic movies: The Empire Strikes Back and Raiders of the Lost Ark. The always awesome Mickey Rourke even makes an appearance as a jaded explosives expert! Watching the film is the cultural equivalent of eating an expensive designer cupcake; it has no nutritional value but is so well done you just don’t care. The plot is a slab of sleazy Florida noir, involving adultery, murder and a lot of sweating nubile bodies. What truly makes Body Heat unique, however, is that it is one of the only films—indeed, one of the few narrative fictions in any medium—in which the plot turns on the Rule Against Perpetuities.1

In the film, Turner plays conniving femme fatale Matty Walker. She seduces Hurt’s character, Ned Racine, a dim-witted sleazeball lawyer, and conspires with him to kill her rich, older husband played by Richard Crenna.2 Here is how one commentator describes Matty and Ned’s relationship:

Ned Racine was just the sort of two-bit, no-account (but aesthetically pleasing) lawyer that Matty Walker (Kathleen Turner in her steamy, lawyer-melting cinematic debut), the female lead in Body Heat, was looking for. Matty did not feel the need to go paging through the Martindale-Hubbell legal directory to look for a lawyer referral. Poised to commit the “perfect crime,” she clearly had criteria other than degrees, experience, and legal ability in mind when looking for appropriate legal representation. Nor did Matty keep these criteria all that well-hidden. “You’re not too smart, are you?” she asks Ned at one point in the film, “I like that in a man.”3

Before Matty can kill her husband, however, she needs to be sure she can get all his money. His will splits his estate between Matty and his niece. Undeterred, Matty steals stationary from Ned’s office and forges a second will that is almost identical to the first. The only difference is that the bequest to the niece is altered so that it violates the Rule Against Perpetuities. This is all revealed in amazing scene after the husband’s death, when lawyers explain the Rule Against Perpetuities and how the bequest to the niece fails and Matty ends up with all the money.

The Rule Against Perpetuities is perhaps the most notorious, misunderstood doctrine in American law. After learning the Rule once in their first year property class and then again when they study for the bar exam, most lawyers never devote another iota of intellectual energy to thinking about it. The Rule is confusing mess that invokes vestiges of English feudal law that seem to have little relevance in the modern world. The problem begins with the abstruse language of the rule: “No interest in property is valid unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest.” Certainly not a model of clarity. The rule is further compounded by the interests involved. It is not concerned with the present interests in property but rather with interests that could arise in the future. Suppose A deeds property to B for life and then to C. B has a life estate in the property. C has a “remainder interest” in the property, which can only arise in the future, after B’s death. The Rule Against Perpetuities is concerned with this type of future interest. The Rule dictates that a future interest must vest—that is, it must belong to someone—within a certain period time, namely, 21 years after someone alive at the time the interest is created dies.4 If the interest does not vest, the transfer fails. This is enormously difficult to apply. In fact, it is so difficult the California Supreme Court once held it is not legal malpractice to draft a document that violates the Rule Against Perpetuities.5

While misunderstood and seemingly harsh, the Rule Against Perpetuities is actually well-intentioned. Its purpose is straightforward: to ensure that at some point, someone actually owns transferred property. In 17th Century England, the government imposed taxes on the transfer of land after the death of the owner. To avoid those taxes, owners would place their property in trust so their successors could live on the land for generations without actually owning it.6 (I suspect something like this is going on at Downton Abbey.) The property would be held in trust in perpetuity. The Rule was designed to end this practice, free up large concentrations of property and wealth, and make sure the deceased could not keep controlling property from the grave.

Knowing all this, is the Rule something that you need to worry about? Probably not. Most states have made some kind of effort to mitigate it effects. Some states have abolished the rule outright. Twenty Nine states, including all the ones in which I practice (Virginia, District of Columbia, Arizona) have all adopted the Uniform Statutory Rule Against Perpetuities.7 The Uniform Rule takes what is called a “wait-and-see” approach. Under this approach, a transfer is not invalidated if it does not vest with 21 year of a life in being. Instead, the Uniform Rule provides additional time—specifically, 90 years after creation of the interest—so that everyone can wait and see if the interest will actually vest. This effectively makes the Rule a chimera; a bizarre hypothetical for law students to worry about, but not something that is likely to affect you.


1 The 2011 film The Descendants, starring George Clooney, also implicates the Rule Against Perpetuities, but it is not as central to the plot.

2 Hell yeah! Colonel Trautman from the Rambo films!

3 John M. Burkoff, If God Wanted Lawyers to Fly, She Would Have Given Them Wings: Life, Lust & Legal Ethics in Body Heat, 22 Okla. City U. L. Rev. 187, 188 (1997).

4 Body Heat never reveals how the fake second will violates the Rule Against Perpetuities. UCLA professor Michael Asimov suspects the bequest to the niece “included a contingent remainder, where the contingency could not vest during the period of lives-in-being-plus-21-years.” Michael Asimov, Estate Planning and Body Heathttp://usf.usfca.edu/pj//articles/BogyHeat.htm (Jan. 1998).

5 Lucas v. Hamm, 364 P.2d 685 (Cal. 1961).

6 For a very good, brief description of the history of the Rule Against Perpetui
ties see Michael Pancheri, Rule Against Perpetuities, http://ezinearticles.com/?Rule-Against-Perpetuities&id=83339 (2005).

7 A summary of the Uniform Rule can be found at http://uniformlaws.org/ActSummary.aspx?title=Statutory+Rule+Against+Perpetuities. Interestingly, Florida has also adopted the Uniform Rule, so it is unlikely that the Body Heat ploy would work.

Craig LaChance

BWG Partner Craig LaChance Wins Important Victory in Antitrust Case

BWG partner Craig LaChance persuaded a federal court today to modify a protective order in a massive, ongoing antitrust suit. BWG’s client, Aerotec International, sued Honeywell, alleging various violations of the Sherman Antitrust Act. To facilitate discovery, the parties agreed to a blanket protective order at the outset of the case. Under the order, all the documents exchanged in discovery and all court proceedings were sealed. After years of discovery and millions of documents exchanged, the United States District Court of the District of Arizona granted summary judgment to Honeywell. Aerotec has appealed the decision to the United States Court of Appeals for the Ninth Circuit.

As part of the appeal, LaChance moved on behalf of Aerotec to modify the protective order and unseal all the documents associated with the summary judgment proceedings. He argued that because the documents had been submitted in a judicial proceeding they were now public documents and thus should be unsealed. Honeywell objected to disclosure of several sealed documents, contending they contained trade secrets and confidential business information, which, if released, could cause competitive harm. In a published opinion, the federal district court granted Aerotec’s motion to unseal, finding Honeywell had not shown compelling reasons as to why the documents should remain sealed; Honeywell did not articulate a specific harm nor show how this harm outweighed the public’s right to access to judicial documents. Accordingly, the court unsealed all the summary judgment documents.

UPDATE: Link to the court’s opinion.

Lost and Abandoned Personal Property Overview

By Craig LaChance

I’ll admit it: I’m a fan of A&E’s preposterous reality show Storage Wars. The show’s own description revels in its absurdity: “‘Storage Wars’. . . follows teams of bidders looking to score it big in the high stakes world of storage auctions.” Basically, the show chronicles the adventures of people—or in A&E’s parlance, “modern day treasure hunters”—who buy the detritus of abandoned Southern California storage units. The show exists somewhere on the cultural continuum between guilty pleasure and irredeemable trash. Nevertheless, it works for me on several levels.

As an initial matter, the show is voyeuristic. Each storage unit is a small window into the life of the person who rented it. Who is the type of person that collects street signs from the 1920s? Or Soviet cosmonaut suits? Why would someone store a ratty old mattress that is worth less than the unit’s monthly rental fee? What is more, each unit represents an enigma. What happened to the owners of the personal property? Why did they abandon their personal property? There is an untold narrative for each of these abandoned units that connotes loss, mishap and human wreckage. Storage Wars is unintentionally documenting the Great Recession.

Storage Wars is also interesting as a meditation on 21st century American masculinity. The treasure hunters are almost exclusively male. Tension on the show is generated by the cast’s macho braggadocio. These are not mere storage auctions; they are showdowns, battles. The cast often describes their elaborate bidding strategies to the camera with blustering swagger. The goal is not simply to make the winning bid, but also to taunt, intimidate, belittle and teach a lesson to the competition. The whole thing plays out like a burlesque of manhood. If bidding on junk at a storage auction is a testosterone-drenched manly endeavor, then manliness means nothing.

But, the most compelling thing about Storage Wars are the moments when the guys actually find something of value in a unit, or as A&E’s website puts it, succeed in “their quest for the extraordinary.” For whatever reason, we get a thrill seeing people luck into something. This is why we watch the Antiques Roadshow. The tweedy antiquarians opining about people’s personal property has its own special appeal, but the real payoff is when someone learns the painting that’s been sitting in their attic for 20 years is a Mark Rothko. My property professor in law school said that every year the most popular sections in his class was adverse possession, the legal doctrine that allows someone to essentially acquire someone else’s land just by sitting on it. As my professor phrased it, “People love the idea of getting something for nothing.”

personal-property-lawsWhile everyone loves the idea of getting someone else’s stuff, the law governing lost and abandoned personal property is opaque. Granted, most lawyers are familiar with acquiring land by adverse possession. But the rights of lost and abandoned personal property—i.e., movable things, like cars, jewelry, furniture etc.—is neglected. I am going to remedy that. Here is what you need to know about how to acquire rights in found personal property.

A finder’s rights in personal property depends on the circumstances in which it was left behind. There are four categories of found personal property:

  1. The first is abandoned property. Someone abandons property when they voluntarily relinquish ownership with the intent to give up both title and possession. For example, putting your collection of New Kids on the Block cd’s on the curb for the garbage truck amounts to an abandonment. A finder of abandoned personal property acquires title to it by actual or constructive dominion and control over the property with intent to assert ownership of it. Thus, if the garbage truck driver takes your NKTOB cd’s up to the front of the truck, intending to keep them, he has acquired title. Incidentally, the personal property sold at auction in Storage Wars, while de facto abandoned, is not technically abandoned. Rather, they are sold under statutes that give storage unit owners a lien on personal property in an unpaid storage unit. See e.g. Va. Code Ann. § 55-416 et seq. (Virginia Self-Service Storage Act); Ariz. Rev. Stat. § 33-1701 et seq. (codifying Arizona’s storage laws).
  2. The second category is lost property. The test for lost property is whether a reasonable person would judge that the owner had parted with it unintentionally through carelessness or neglect. Think of a purse accidentally left at a checkout stand. The finder of lost property is entitled to possession against all the world. But unlike abandoned property, finding lost property does not confer title. Instead, the owner of lost property still retains title. Therefore, a finder who sells or damages lost property would still be liable to original owner.
  3. The third category of found property is mislaid property. Property is mislaid when, judging from the place it is found, it appears the owner intentionally placed it there and later forgot about it. The finder of mislaid property, however, has few rights to it. Rather, the owner of the premises on which the property is found is entitled to possession, not title, against all the world except the original owner.
  4. The fourth and final category of found property is treasure trove, which is verifiably antiquated gold, silver or money that has been concealed for so long that the original owner is either dead or unknown. For example, gold doubloons stashed in the wall of an old house would be a treasure trove. Traditionally, the finder of treasure trove took possession and title to the property. The modern trend, however, is to treat a treasure trove like lost property, i.e. the finder only gets possession.

So one can only acquire title to abandoned property or (perhaps) to a treasure trove. Lost or mislaid property entitles one to, at best, the mere right to hold the property. Now you know how the law treats someone else’s stuff. Of course, if you ever have a dispute over personal property (or real property), you should contact the excellent, seasoned attorneys at Baird Williams and Greer.

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Arizona Court Rules ‘Long Arm’ Cases Must Follow Home-State Law to the Letter

ARIZONA COURT RULES ‘LONG-ARM’ CASES MUST FOLLOW HOME-STATE LAW TO THE LETTER

Local law firm Baird Williams & Greer triumphs in Arizona Court of Appeals.

PHOENIX (May 29, 2013) – Companies that hope to enforce out-of-state judgments against Arizona firms must follow procedures to the letter of the law, the Arizona Court of Appeals has ruled.

The judges vacated a bid by Texas-based Hillcrest Bank to enforce a default judgment obtained in a Texas court against Phoenix resident Richard Sodja.

In their unanimous decision, the appellate judges acknowledged there are ways for out-of-state companies to sue Arizonans in their own state courts. And some states, such as Texas, do have applicable “long arm” laws. But Judge Margaret Downie, writing for the court, said Arizona courts will honor those out-of-state judgments only when they are in strict compliance with the applicable laws of the other state.

BWG Attorney Craig LaChance represented Sodja in his appeal.

“The bank sued Sodja in Texas, alleging breach of three guaranty agreements,” LaChance said. “Because Sodja is not a Texas resident, the bank relied on the Texas ‘long arm’ law to serve him with the papers, which involves serving the Texas secretary of state.”

That office forwarded the petition and citation, the equivalent of a complaint and a summons, to the Phoenix business address for Sodja listed in the bank’s petition, but not to his home. When Sodja failed to respond, a default judgment was entered against him.

The bank eventually filed a notice in Maricopa County Superior Court to enforce the Texas judgment. A trial judge here rejected Sodja’s bid to void that judgment, resulting in the appeal.

The judges ruled that Arizona courts are not required to enforce judgments if the originating court did not have jurisdiction over the defendant. Under Texas laws, there must be proper service of a claim against a defendant.

“One requirement is a statement of the name and address of the nonresident’s home or home office,” LaChance said. “The bank in this case failed to meet the requirement so the judgment against Sodja was vacated.”

The East Valley Tribune wrote a piece about the appeal: “Out-of-state judgments must follow Arizona law to sue, judges rule.

Arizona’s Economic Loss Rule – Arizona Attorney Magazine

Baird, Williams and Greer Partner, Craig LaChance, has published an article in the Arizona Attorney Magazine on the Arizona Supreme Court’s recent economic loss rule decision in Flagstaff Affordable Housing v. Desing Alliance. In that case, the Court held that the economic loss rule—which bars tort claims and limits a plaintiff to contract remedies when the only loss suffered is economic—precludes negligence claims in construction defect cases. In a thoughtful analysis of the Flagstaff decision, Craig critiques the court’s reasoning, contending the court has tacitly and improperly rooted the decision in 19th century legal assumptions.