Tuesday, November 24, 2015
Attorney Asks Court of Appeal to Strip Potshots at Him From Opinion
Justice Ashmann-Gerst Still Hasn’t Modified Opinion Creating a Tempest Over a Type Size
By ROGER M. GRACE
Marc J. Poster is the appellate lawyer who was pounced on recently by Court of Appeal Justice Judith Ashmann-Gerst of this district’s Div. Two for supposedly submitting a brief that “was sent back to counsel because it was too small to be read.”
As pointed out here on Nov. 9, the brief was in 12-point type rather than 13-point, the size required in the Supreme Court and the courts of appeal. That did not render it unreadable; what you’re looking at now is in 10.5-point type.
And this sentence is in 12-point type.
In a petition for re-hearing filed Wednesday, Poster asks, quite politely, that the sassy footnote in which he’s chided be excised, as well as language berating lawyers on one side or both—it isn’t made clear—for “attacks on the character of opposing counsel.” Neither Poster, representing the appellant, nor the respondent’s lawyers—Patrick DeCarolis and Melissa Ramirez Fresquez of Trope and DeCarolis—engaged in any such conduct.
The introduction to the petition reads:
“Because it fails to address two pivotal issues—a trial court’s statutory duty to explain its rulings in a statement of decision, and burden of proof—the Opinion is fatally flawed.
“The Opinion also unjustly impugns the integrity of counsel. Exacerbating the injustice is that, although the Opinion is unpublished, its criticisms were severe enough to catch the attention of the legal media. We urge the Court to reconsider its criticisms to prevent unwarranted public embarrassment to counsel and the courts.”
(A footnote identifies the Nov. 9 comments here as the place where Ashmann-Gerst’s opinion was spotlighted.)
As to whether a rehearing should be granted, and merits of the appeal be determined anew, this column expresses no view. The legal controversy in the case, while significant to the parties, is rather ho-hum to anyone else.
The question of broad significance is whether a Court of Appeal opinion, albeit unpublished, should be allowed to stand, as is, which denigrates the lawyers in the case based on false assertions of misconduct on their part. I don’t believe that reasonable minds could differ here. Ashmann-Gerst has an ethical duty to do some editing…and, if she fails to do so, the signatories to her opinion—Presiding Justice Roger Boren and Justice Victoria Chavez—should disassociate themselves from it.
“[I]nnocent mistakes never warrant censure,” Poster reminds Ashmann-Gerst, in discussing her tizzy over the “unreadable” type. He argues:
In footnote 2, the Opinion criticizes counsel for initially submitting a reply brief that contained a smaller type font than called for in the rules and for signing a declaration that the brief complied with the rules….
The Court never asked for an explanation before issuing its Opinion. Had the Court done so, this is what it would have learned:
The final draft of the brief was prepared in WordPerfect format in regulation 13-point type. That is the draft and certificate of compliance that counsel approved for his digital signature. Counsel’s legal assistant then converted the final draft to pdf format in order to submit the brief in the required electronic form to the Court. For unknown reasons, the conversion program shrank the font slightly, from 13-point type to about 12-point type, the type size used in state trial courts. (This may have been a bit harder to read, but in our view it was not, as the Opinion states, “unreadable.”) The inadvertent font shrinkage was not obvious and went unnoticed. Counsel’s legal assistant then made hard copies of the brief to submit to the Court. Contrary to the statement in footnote 2, the Court clerk did not send the briefs back to counsel. Instead, the clerk telephoned counsel’s legal assistant and called the error to her attention. For three decades counsel’s assistant has taken great pride in the quality of her work and in her ability to meet the varying format requirements for different courts. Profoundly embarrassed by the error, she immediately apologized in writing to the Court clerk, immediately corrected the font size and immediately resubmitted the brief for filing.
From time to time, counsel make innocent mistakes. Such innocent mistakes never warrant censure. We respectfully urge the Court to reconsider and delete footnote 2 as unjustly criticizing counsel (and indirectly his legal assistant) for an innocent and ultimately harmless mistake.
By contrast, Ashmann-Gerst’s belittling of Poster was neither innocent nor harmless.
She either slammed him intentionally, or is so derelict in monitoring the output of research attorneys that it slipped by her. If the former is the case, she is in need of guidance; if the latter is the case, she is not doing her job and should consider following former Court of Appeal Justice Fred Woods’ example by retiring.
The mischaracterization of Poster’s conduct is apt to affect his professional reputation.
Court of Appeal opinions that are “not certified for publication” are no longer, as they were in days past, virtual secrets. They are accessible on the Internet.
While I do comb through the Second District “non-pubs” periodically, I was tipped off to Ashmann-Gerst’s Nov. 3 opinion by an email of that date from a friend of mine in Sacramento. He apparently thought it would be of interest because of the seemingly extreme sloppiness of a lawyer, who got his comeuppances.
From the Second District Court of Appeal’s opinion in “In re Marriage of STEVE and DONNA LEWIS”:
“Given the reputations of the law firms and lawyers representing the parties in this appeal, we are, to use a word in Steve’s opening brief, ‘befuddle[ed]’ by the quality of the legal work presented. Notwithstanding a certificate of compliance verifying the font size, Steve’s reply brief was sent back to counsel because it was too small to be read. And, notwithstanding well-established rules of appellate procedure, counsel offered incomplete, unfounded, and unintelligible arguments.’
(The representation: Greines, Martin, Stein & Richland and Marc J. Poster for Appellant.)
You’ll note that the email writer zeroed in on the name of the appellant’s lawyer and his firm.
To someone viewing Ashmann-Gerst’s opinion—such as a potential client—it might well be concluded that Poster is a goof-off and his law firm, notwithstanding that Ashmann-Gerst implies that its reputation is favorable, might not be sufficiently meticulous.
As it happens, Greines, Martin, Stein & Richland is one of the two top civil appeals firms in Southern California, and Poster, personally, is a highly regarded appellate lawyer. He’s immediate past president of the Beverly Hills Bar Association and a past chair of the Los Angeles County Bar Association’s Appellate Courts Committee (now a section) and LACBA’s Appellate Judicial Evaluations Committee.
The assertion that the briefs were shoddy is a matter of opinion. But to say that the reply brief was in a type size “too small to be read” is an out-and-out misstatement of fact. It connotes use of a type size smaller than six-point which the Legislature has determined is the minimum size for most legal notices.
At about 5-point type, squinting or using a magnifying glass might be necessary: This is in five-point type.
Four-point type, except for those with exceptionally keen vision, is unreadable: This is in four-point type.
The California Supreme Court said in a 1934 decision, which it quoted with approval in 2006:
“Only one with very poor eyesight would be unable to read a line printed in twelve-point type as readily as one printed in eighteen-point type.”
If Ashmann-Gerst is experienceing frustration over failing vision, rather than taking out her frustrations on Poster, she should see an ophthalmologist.
Div. Four of the First District Court of Appeal in 2011 noted that the appellant complained that the respondent’s brief was in the wrong type size and the margins were too wide. The opinion scoffs that the “appellant’s complaints are trivial in nature.” And so are Ashmann-Gerst’s complaints.
If a brief were in a type size actually “too small to be read” and an attorney certified that it was in 13-point type, the implication would be a serious one: that the attorney was a liar who made a false statement to the court. It would also indicate he or she was a dolt; the falsity of a certification of compliance would be readily detected if a document were in a type size so tiny that it could not be read.
Assuming that Ashmann-Gertz was aware of the content of the Nov. 3 opinion when it was filed (and I have no information that she wasn’t), it is markedly to her discredit that in the time that has elapsed since that filing, she has not gotten ahold of herself, straightened her thinking, and modified the opinion by deleting the barbs. And if she did not know when the opinion bearing her name as author came out, she should have come out of the fog by now and pared the opinion.
Poster also addresses Ashmann-Gerst’s blast at one or both sides for lack of civility. He says:
After bemoaning the trend to lack of civility among counsel, the Opinion states: “Impugning the character of opposing counsel is almost never appropriate and in this case was particularly embarrassing. We will not address these ad hominem attacks.”…
Taken aback by this statement, counsel have read and reread the briefs and found no attacks on the character of opposing counsel, much less attacks too embarrassing to mention. Perhaps the Court mistook challenges to the correctness of arguments made by opposing counsel as challenges to the integrity of counsel. No personal character attacks were made on counsel and certainly none were intended.
This is not just counsel’s subjective view and representation to the Court. A well-known observer of the legal scene came across the Opinion, was surprised by its tone, contacted counsel for both sides, obtained and reviewed copies of the briefs, and concluded in a published editorial [that should read “column”] that the briefs contain no ad hominem attacks on opposing counsel [citing this column]….
Accusations of incivility are a serious matter, both to counsel and to the courts. A court’s unjustified accusations against counsel do not further, but rather undermine, efforts to promote civility in the judicial system as a whole.
We respectfully urge the Court to reconsider and delete the first two paragraphs on page four of the Opinion.
It’s ironic. Ashmann-Gerst accuses Poster of offering “incomplete, unfounded, and unintelligible arguments.” Yet, the portion of her opinion in which she complains of “[i]mpugning the character of opposing counsel” does not set forth who assailed whom or reveal the nature of the derogatory remarks. Implicitly, she casts aspersions on attorneys on both sides, when it might be misconduct only on one side that is being fantasized. In fact, no such affronts appear in any of the briefs. Ashmann-Gerst thus puts forth “incomplete, unfounded, and unintelligible arguments.”
Were it not for judicial immunity, some of Ashmann-Gerst’s comments would be libelous. If an attorney or other participant in a court proceeding slung unfounded insults at a judge, it would be a contempt. Unless the Commision on Judicial Performance chastises her (and if it did, it would probably be done privately), Ashmann-Gerst has done something no one but a jurist could do with impunity in a case: utter false, defamatory, and gratuitous slurs.
That sort of conduct should be beneath a judge, at any level.
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