Don’t Be That Attorney — Misstating Record on Appeal

Misstated RecordAs reported elsewhere, we received a very satisfying verdict of more than $1.5 million resulting from a defamatory email sent by a defendant, concerning our client. The defendant did not go silently into the good night, and appealed the verdict, claiming that there was insufficient evidence to support an award of that size.

That's all fine and good, but in appealing the verdict, the defense attorney completely misstated the record. On an appeal based on insufficient evidence, the appellant is required to set forth all the evidence that would tend to support that verdict. Indeed, if the appellant fails to do so, the Court of Appeal can deem the issue waived.

I devoted a full two-thirds of my responsive brief on appeal just setting the record straight by pointing out all the misstatements made by defense counsel. For example, in his email, the defendant had claimed that our client failed to deliver the purchased product. This was one of the defamatory statements because the product was delivered on time, and at trial no fewer than four witnesses attested to that fact. Only two witnesses claimed to the contrary — the defendant and his wife. In the statement of facts in the opening brief, the defendant repeatedly stated that the product was not delivered on time, and each time cited to his own testimony while ignoring all other evidence to the contrary.

At trial and in conjunction with motions, you can argue the facts most favorable to your case, but on appeal that is verboten. Defendant/Appellant was required to set forth the testimony of the witnesses that stated the product was delivered on time.

The same attorney handled the trial and the appeal, and he had been completely professional and ethical during the trial, so I genuinely believe that he simply did not know the rules on appeal. He no doubt thought, just as with law and motion, he could argue only the facts most favorable to his position and leave it to the opposition to argue any contrary facts. Still, I was a little disappointed at oral argument when the Justices did not take him to task for failing to properly set forth the record. I surmised that they felt no need to do so because they were planning to excoriate him in the opinion.

Today I received that opinion from the Court of Appeal, and from the first sentence of the opinion, it was clear that my supposition was correct.

The opinion opens with the sentence, “All things considered, appellant got off cheaply in the trial court.” Not something an appellant wants to read when the entire appeal is based on the claim that the damages were too great.

As regards the one-sided statement of the record, the court said:

Appellant has misstated the record in numerous particulars, as shown in a respondents' brief so devastating it has left Appellant, like Job, with no reply but silence and a hand over his mouth.” (Emphasis added because I really like that part.)

The court then provided a half-page, single-spaced footnote, setting forth just a few examples of the defendant's misstatements of the record. It indeed had to have been devastating for opposing counsel to read this opinion, and I can't imagine how he is going to work up the nerve to show it to his client.

The Justices obviously had some fun with this opinion. In our brief, I had mentioned in passing that defendant had created an email address that combined my client's name with a derogatory Hindi word. The justices took the time to locate A Dictionary of Urdu, Classical Hindi, and English, published in 1884, in order to determine just what the word in question meant, and then threw it in defendant's face.

The lesson here is that if you are going to work in areas unfamiliar to you, you must take the time to bring yourself up to speed. My guess is that opposing counsel does not normally handle appeals, and did not know about having to set forth unfavorable testimony. He is now saddled with an opinion that publicly takes him to the woodshed. An hour with an appellate practice guide could have avoided all of that, and perhaps saved the client the cost of a failed appeal.

Leave a Reply

Your email address will not be published. Required fields are marked *