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Jackson and Wilson, Inc.

The 7 Most Common Avoidable Issues an Appellate Specialist Sees on Appeal "Information is the currency of democracy." - Thomas Jefferson, Third US President, Architect and Author

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recently interviewed appellate law specialist, Donna Bader, author of the new book, "An Appeal to Reason: 204 Strategic Tools to Help You Win Your Appeal at Trial” (Bench Press Publishing, 2011). Donna is also the author of “California Summary Judgment and Related Termination Motions”, (Thomson/West, 2007) and was the forms editor of “California Practice Guide: Civil Procedure Before Trial, Statutes of Limitations”, (The Rutter Group, a Division of Thomson/West, 2006).

During this interview, you’ll gain great insight to the 7 most common avoidable issues Donna sees on appeal. You’ll also get to hear Donna’s answer to the question, “If you could share only one tip to help plaintiff lawyers avoid an appeal after a successful trial, what would it be? Mitch: Good morning Donna. Thanks for taking time to share your thoughts with us about the 7 most common avoidable mistakes you see trial lawyers make. But before we get started, can you tell us a bit about yourself? Donna: Of course, I have been an attorney since 1977 and a certified specialist in appellate law since 1999. I spent much of my early career assisting attorneys in preparing law and motion matters on a free-lance basis. I also worked as a research attorney for the superior court, which helped me analyze documents from the court's point of view. In 1980, I decided to specialize in handling civil appeals and writs and have done so ever since.

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Mitch: You mentioned that you're a certified appellate specialist. What does that mean? Donna: The State Bar of California, Board of Legal Specialization certifies a number of specialties, one of which is appellate law. Attorneys have to pass an exam and demonstrate an expertise and experience in their chosen specialty. Certified attorneys are re-certified every five years after satisfying MCLE and experience requirements. Mitch: What types of appeals have you handled over the years? Donna: I have handled a wide range of appeals involving personal injury, medical malpractice, products liability, probate, employment, and other civil cases. Mitch: With more than 30 years of experience handling appeals, I'll bet you've seen just about every mistake that a trial lawyer can make. Can you share with us the 7 most common mistakes you've seen that can easily be avoided? Donna: Let me list them: • In demurrers, failing to present a complaint that states a cause of action; • Failing to show the court how a complaint can be amended after a demurrer is sustained; • In summary judgment motions, failing to demonstrate a triable issue; • Failing to respond to a separate statement with admissible evidence and not listing triable issues with reference to the evidence; • Failing to object on proper grounds at trial and in summary judgment motions; • Failing to request and object to a statement of decision in court trials; and • Failing to make a clear record of objections to jury instructions and verdict forms. Mitch: Now in your book entitled, "An Appeal to Reason: 204 Strategic Tools to Help You Win Your Appeal at Trial”, you discuss different ways trial lawyers can avoid making these mistakes. By the way, it's a great resource and I think a "must read" book for any California lawyer trying cases. Donna: Thanks! I have received a number of positive reviews from reviewers and other attorneys. I am very proud of it. Mitch: Do you discuss these mistakes in your book and why is it that lawyers continue to make these same mistakes over and over? Donna: My book took over 30 years to write! It's based on the mistakes I have observed. Most attorneys often focus on winning their cases at trial, and do not think about protecting their cases on appeal. Visit us online at JacksonandWilson.com

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Mitch: That’s really amazing. I’m so glad you’ve shared these valuable practice tips in your book. Let me ask you another question. After a lawyer agrees to take on a new case, when should he or she begin to think about the appellate process? Does that make sense? Donna: Yes it does. Sometimes you know early on that you have an appellate issue. If so, you need to think about how the appellate court will look at your papers from start to finish. You want to build your credibility and make sure that the "issue" is carefully briefed below so you haven't waived any legal arguments at the trial level. Some cases, such as medical malpractice and employment cases, often involve summary judgment motions, so the attorney has to think about how to oppose these motions from day one. Mitch: Let's change directions for a moment. Not too long ago the California Supreme Court in the case of Howell vs Hamilton Meats, came down with a tough ruling for injured consumers and plaintiff attorneys in California. In light of the Howell case, any advice for plaintiff attorneys about modifying their trial approach to avoid exposing their client's to Howell related appeals? Donna: First, I would encourage plaintiff's attorneys to support their trial lawyer groups, including Consumer Attorneys of California, which are working on legislation to change the effects of Howell. There are also seminars being given by attorneys in the trenches who can provide advice in this area. Remember that Howell addresses situations where there is a "preexisting contract" between the provider and the health insurer. The attorney must look at medical bills in terms of reasonableness and prove that they represent a true economic loss that was actually paid, incurred, or is still owed by the plaintiff. In addition, Howell does not apply to situations where the plaintiff is uninsured, the provider offers a gratuitous discount or the services are donated. And if the jury awards amounts greater than those actually paid or incurred, the plaintiff will face a new trial motion in which he or she will have to choose between accepting the reduced damages or pursuing a new trial. Mitch: Donna, if you could share only one tip to help plaintiff lawyers avoid an appeal after a successful trial, what would it be? Donna: Get your objections and the relevant documents on the record in a way that the justices of the court of appeal, who weren't there to witness your brilliant performance, can understand. You should always be persuasive to the jury, trial court, and the court of appeal! Mitch: Thanks Donna. Really appreciate it! Where can people learn more about you? Donna: They can find me at www.DonnaBader.com or www.AnAppealtoReason.com. My book can be purchased by visiting my web site or through Amazon.com.

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Mitch: Donna, I really want to thank you for taking the time to do this interview. Every trial lawyer I know can benefit from all the information you've shared. Thanks so much! Donna: You're welcome. I appreciate this opportunity to help trial attorneys and encourage them to read my blog at www.AnAppealtoReason.com. ____________________________ Jon Mitchell "Mitch" Jackson is a founding partner and Senior Litigation Partner of Jackson and Wilson, Inc., a top AV rated firm by MartindaleHubbell. The firm focuses its practice on helping victims of personal injury and wrongful death. In 2009 Mitch was named an Orange County "Trial Lawyer of the Year" by the Orange County Trial Lawyers Association. In 2011, Mitch was honored to be nominated a second time for the award. Mitch's firm is listed in the Bar Register of Preeminent Lawyers, an exclusive listing reserved for less than 5% of all distinguished law practices in the United States. Several earlier recognitions include Mitch being repeatedly named as a "California Super Lawyer" and an ability rating of 10.0 or Superb by the AVVO lawyer rating system. With a desire of sharing more than 25 years of litigation and trial experience, Mitch has established a free and confidential service to help other lawyers with their negotiation, litigation and trial related questions and issues. You can learn more about this service via Facebook at Facebook.com/AskMitchJackson or AskMitchJackson.com ______________________________

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Interview with Appellate Specialist, Donna Bader...