Thursday, December 3, 2015
Court of Appeal Justice Judith Ashmann-Gerst Backs Down, but Only a Little
Jurist Displays Lack of Commitment to Fairness by Failing to Excise Pokes at Lawyers From Opinion, Adding Specious Argumentation in an Attempt to Justify Her Assaults
By ROGER M. GRACE
Court of Appeal Justice Judith Ashmann-Gerst of this district’s Div. Two has modified a Nov. 3 opinion in which she took unwarranted potshots at the appellate lawyers in the case…but she didn’t make changes to remove the slurs, instead attempting to rationalize them. In her vain effort to justify her effrontery, she resorts to utter illogic.
At least Ashmann-Gerst did remove the falsehood that the “reply brief was sent back to counsel because it was too small to be read.”
The jurist added words to one sentence in the text, took out two sentences, altered a footnote, and inserted two new footnotes.
The changes were made Tuesday afternoon in the unpublished opinion in In re Marriage of Steve and Donna Lewis, B255900, which becomes final today.
The one sentence in the text which Ashmann-Gerst slightly expanded originally read:
“Moreover, and perhaps more importantly, attacks on the character of opposing counsel are not well received in this court, and pejorative adjectives do not persuade.”
It now reads:
“Moreover, attacks on the character of opposing counsel are not well-received in this court, and pejorative adjectives, including those directed towards the parties and the trial court, do not persuade.”
The problem with that sentence—either in its original or revised form—is that neither appellant Steve Lewis’s attorney, Marc J. Poster of Greines, Martin, Stein & Richland LLP, nor respondent Donna Lewis’s attorneys, Patrick DeCarolis Jr. and Melissa R. Fresquez of Trope & DeCarolis, assailed opposing counsel.
Ah, but Ashmann-Gerst has an answer to that, albeit a flimsy one. An added footnote begins:
“In the petition for rehearing, counsel contends that the briefs contained ‘no attacks on the character of opposing counsel.’ The briefs were written by attorneys. If an attack on a party, a witness, or the trial court arises in a brief, then we should construe that as an attack by and against opposing counsel.”
Hold on. If the Office of Attorney General, in a criminal case on appeal, asserts that the crime evinced “cruelty” or “callousness” on the part of the defendant, are we to understand that this is actually an attack on the appellant’s lawyer? If an appellant’s counsel is claiming misconduct by the trial judge, and uses such phrases as “an advocate rather than a neutral arbiter” or such adjectives as “biased,” is this somehow an attack on the respondent’s attorney?
Ashmann-Gerst’s proposition is, patently, nonsensical. To state what is obvious to any rational person (and I assume that includes Ashmann-Gerst): a personal attack on a party—as opposed to an attack in a brief on a legal contention put forth on behalf of the party—is an attack on the party. Likewise, an attack on a witness is an an attack on the witness; an attack on the trial court is an attack on the trial court. Any such attack is not against the attorney for the side that is resisting the attack.
An appellate lawyer attacks opposing counsel in one way: by attacking opposing counsel. Opposing counsel is not the alter ego of his or her client (unless an attorney is acting in pro per) or a trial witness or the trial judge.
The added footnote continues:
“ ‘An attorney should not disparage the intelligence, integrity, ethics, morals or behavior of the court or other counsel, parties or participants when those characteristics are not at issue.’ ” (In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1536–1537.) For clarity, we note some of the “unbecoming” (Cal. Atty. Guidelines of Civility & Professionalism (July 20, 2007), Introduction, p. 4) comments made in the appellate briefs. The opening brief accuses the trial court of committing a “whopping” miscarriage of justice, of paying “lip service” to a legally recognized distinction, and of having “plucked [numbers] out of thin air.” Counsel also writes: “The trial court has no discretion to use overblown financial figures to determine spousal support. As with all computer programming, garbage in, garbage out.” The opening brief likewise asserts that Donna’s expert “plucked” a number from the air and that her charge to Steve’s side of the ledger was “befuddling.” The respondent’s brief also contains improper remarks. It repeatedly uses the word “mantra,” as if Steve had a “mantra” to avoid paying Donna. It inappropriately asserts that “Steve does not believe that the rules apply to him” and that he “is one of those people” “who takes his anger and greed beyond the bounds of reason.” The reply brief responds in kind, by accusing the respondent’s brief of “[t]aking the low road,” of characterizing Donna’s argument as a “a vain effort to make up for the deficiencies in her proof,” of describing an expert’s testimony as “gibberish,” and of reiterating its insult that the trial court only paid “lip service” to the statutory factors.
For the most part, the quoted passages merely reflect spirited argumentation.
As an example, use of the word “mantra” in the respondent’s brief could not be viewed by anyone of normal sensibilities as offensive. The first words of the brief’s introduction are: “At the beginning of this case Appellant, Steve Lewis’…mantra was ‘I only make $20,000 a month!’ ” The brief goes on to scoff that “…Steve’s mantra that he makes $20,000 per month was blown apart by two judges, three experts, including two of his own, and his own testimony,” and makes use of the term elsewhere. “Mantra” is defined as a “statement or slogan repeated frequently.” The point that was being made was that Steve Lewis uttered his statement as to his monthly earnings frequently. Use of the word “mantra” was apt. and was in no way distasteful. (If lively writing is verboten in the Court of Appeal, then Presiding Justice Arthur Gilbert of Div. Six is a recurrent offender.)
However, as observed in this space on Nov. 9, there was one passage in the respondent’s brief that was “unduly harsh, and regrettable”:
“Steve does not believe that the rules apply to him. His appeal is just more of the same. In the realm of family law we have become accustomed to seeing many unhappy and dissatisfied family law litigants. However, there is an occasional litigant who takes his anger and greed beyond the bounds of reason….”
Clearly, Poster did not respond “in kind” simply by bemoaning that Donna Lewis took “the low road” by resorting to personal attacks, and asking that they be disregarded by the court.
But more to the point, what was said in the respondent’s brief was an attack on Steve Lewis, personally, and not, even arguably, an attack by DeCarolis and Fresquez on Poster.
Even if we were to agree that all of the utterances in the briefs which Ashmann-Gerst quotes with scorn should not have appeared—and even if we accept her ludicrous proposition that an attack by an appellate lawyer on the party on the other side, or a witness for that party, or the trial judge constitues an attack on opposing counsel—it remains that she utterly fails to point to anything that supports her assertion that there were “attacks on the character of opposing counsel” (emphasis added).
Irresponsibly, Ashmann-Gerst impugns the professionalism of lawyers who were simply trying to represent their clients effectively, and at no point slung barbs at each other. Disgracefully, she won’t excise the disparaging comments from her opinion and tries to defend them with argumentation insulting to the intelligence of the average reader.
A portion of the text was removed. The modification order specifies:
“On page 4, the last sentence of the second full paragraph, beginning ‘Impugning the character’ and ending with ‘these ad hominem attacks’ is deleted.”
The deleted matter reads:
“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.”
As it happens, that’s not a “sentence”; it’s two sentences. Ordinarily, an error so insignificant would not be worth mentioning, but in light of Ashmann-Gerst’s obsession with trivial slip-ups—about to be discussed—it does seem germane.
Footnote 2, as it appeared in the opinion filed Nov. 3, is now deleted, and a new footnote 2 is inserted.
The original footnote read:
“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.”
Poster has explained that the reply brief was composed in WordPerfect in 13-point type—the size required by a court rule for briefs in the Court of Appeal and the Supreme Court—but the text was reduced to a size closer to 12-point type in the course of converting the file to a PDF.
The brief was not “sent back.” Poster’s office was apprised by a Court of Appeal clerk of the defect and a brief, in 13-point type, was electronically transmitted to the court. More significantly, 12-point type is not “too small to be read.” It’s the size used in papers filed in the Superior Court.
Footnote 2 now reads:
“Notwithstanding well-established rules of appellate procedure, counsel offered inadequate arguments. We discuss these shortcomings in subheadings 1 through 4, infra.”
However, Ashmann-Gerst did not drop her picayune chiding of Poster for submitting a brief in sub-standard type size. She adds a footnote that says:
The petition for rehearing contends that we unjustly criticized 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.” While admitting that the reply brief “may have been a bit harder to read,” counsel then complains that we never asked for an explanation, and, had we done so, we would have understood this “innocent” mistake. This error had no bearing on the resolution of the issues in the appeal. We requested and received a proper reply brief that we fully considered. (Cal. Rules of Court, rule 8.204(b)(4) [“[T]he type size, including footnotes, must not be smaller than 13-point”].)
The transgression Ashmann-Gerst points to may not have affected the outcome of the appeal, but her needless mention of it could affect Poster’s professional reputation, at least to a small extent. Although the case is not certified for publication in the Official Reports, a potential client who Googles his name is apt to come across it, and conclude that the lawyer is a bit sloppy, or unknowledgeable of the rules. The fact that the matter is mentioned in the opinion implies that it is something worth noting.
The footnote quotes Poster as acknowledging that the brief, as submitted, “may have been a bit harder to read.” But harder to read than what? He says in his petition for rehearing that the 12-point type “may have been a bit harder to read” than 13-point type, adding, “but in our view it was not, as the Opinion states, ‘unreadable.’ ” Ashmann-Gerst fails to mention that the type was only about one point size smaller than that prescribed, or that shrinkage occurred in the course of converting a computer file to a PDF.
She recites that appellant’s attorney—i.e., Poster— “contends that we unjustly criticized” him. The implication of her discourse is thas he was not “unjustly criticized.” The truth is that he was accused, in the initial opinion, of submitting a brief with text that was “too small to be read”…which would mean using a dinky type size that would require a magnifying glass to decipher. That would be bizarre and hardly an “innocent” boner. Ashmann-Gerst erred in making that allegation; by any objective standard, she did unjustly criticize Poster. While no mention of the trivial matter of the filing of a brief in less than 13-point type should have been included in the opinion, if Ashmann-Gerst just had to include a recital of the controversy, she was ethically obliged, I would suggest, to provide an accurate account.
Nothing in the briefs reflects negatively on the character of the lawyers. However, Ashmann-Gerst’s denigration of them, her quoting from cases concerning attorneys whose misconduct was egregious, her intransigence, pettiness, and resorting to manifestly bogus arguments, do reflect unfavorably upon her character.
Joining in the opinion were Presiding Justice Roger Boren and Justice Victoria Chavez.
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