Metropolitan News-Enterprise


Monday, December 14, 2009


Page 1


Court: Lawyer’s Deficient Brief Forfeited Client’s Claims


By SHERRI M. OKAMOTO, Staff Writer


An Elk Grove attorney’s representation of her client was so bad that the Third District Court of Appeal on Friday deemed the arguments raised in her appellate brief to be forfeited and threw out the case.

Justice George Nicholson, joined by Justices Harry Hull and M. Kathleen Butz in his unpublished decision for the panel, chided Louise A. Judkins for submitting a brief that was not “even minimally adequate.”

Judkins represented Parkash Narayan, a former part-time seasonal employee for the City of Sacramento, who had unsuccessfully sued the city and three of its employees claiming violations of his rights under the California Fair Employment and Housing Act and wrongful termination.

Following a three-week trial before Sacramento Superior Court Judge James McFetridge, a jury found in favor of the defendants. McFetridge later denied Narayan’s motion for a new trial, motion for judgment notwithstanding the verdict, and motion to strike costs.

On appeal, Judkins asserted that there were errors in the trial proceedings which were presumed to have been prejudicial to her client, the verdict could not stand as a matter of law because the city admitted using race as a criterion in hiring, and that insufficient evidence supported the verdict.

These same grounds also supported a reversal of the trial court’s denial of her motion for judgment notwithstanding the verdict and her motion to strike costs, she argued.

In the statement of facts, Judkins only recited facts benefiting her client and failed to include all of the material facts adduced at trial. She also included arguments challenging the weight of some of defendants’ testimony and evidence in her statement of facts, and supported her arguments with the phrase: “Cites to the record are in body of brief.”

Judkins wrote that she was “cognizant” of the substantial evidence rule, but that she “has no intention of rehashing yet again in this brief events and accounts which have now been disputed and aired in numerous forums for nearly six and one half (6 1/2) years.”

The argument section of the brief did not address the city’s alleged admissions of using race as a hiring criteria and the lack of substantial evidence, but only the assertion of prejudicial error that “occurred before, during and following trial” and upon McFetridge’s rulings on various evidentiary motions.

Judkins did not identify any error, but instead directed the appellate court to read certain portions of the transcript. She asserted that prejudicial error could thereby be presumed, without explaining how such a presumption could be made.

As a result, Nicholson opined, “counsel has failed even to identify an error of law or fact, let alone support a claim of error with argument” in the appellate brief.

“We are not required to make an independent, unassisted study of the record in search of error, and we will not do so,” he said. “It was counsel’s obligation to identify in her opening brief the exact errors she claimed occurred here, and to support each claim of error with citations to controlling authorities and focused arguments illustrating the error and its prejudicial effect.”

As Judkins had failed to satisfy her responsibilities as counsel, Nicholson reasoned that her arguments were forfeited.

The attorney did not respond to a message seeking comment on the case, which is Narayan v. City of Sacramento, C059138.


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