Celebrity Lawyer Reveals What Gets the Courts’ Attention
[Source: The California Appellate Law Podcast]
https://www.calpodcast.com/1093703/10672839
Celebrity lawyer Christopher C. Melcher, who is ranked a best family law attorney in California, reveals what gets the courts’ attention and how celebrity driven cases affect the law.
Welcome to the California Appellate Podcast, a discussion of timely trial tips and the latest cases in news, coming from the California Court of Appeal and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis.
Conditionally licensed by the California Department of Podcasting, the California Appellate Law Podcast is a podcast for trial and appellate attorneys. In each episode, we try to bring you some tips and insights that you can use in your cases at trial or on appeal.
Something that comes up a lot on our podcast is how do we get the appellate courts and the Supreme Court to take notice of a case? Sometimes, the law develops based on what legal issues are deemed by the courts to be newsworthy. And so the question becomes, how do you get your case to become newsworthy?
And so for that topic, we thought we’d turn to the expert in newsworthy law, top family law attorney Christopher Melcher.
Chris Melcher is a high profile celebrity divorce lawyer, a certified family law specialist, as well as partner of Walzer Melcher LLP, which is ranked a top family law firm. Chris has represented clients in some of the largest divorce cases in California. His clients include A list celebrities, executives, and tech company founders. Chris also serves as a consultant and expert to other family lawyers on important divorce cases.
Tim Kowal: You’ll also find Chris on major news outlets as a frequent commentator on celebrity divorce and high profile cases, including the Angelina Jolie Brad Pitt case, the Britney Spears conservatorship case. And most recently the Johnny Depp, Amber Heard case. And relevant to our discussion today, Chris also handles family law, writs and appeals. Chris has twice argued in the California Supreme Court and has published decisions to his credit. So Christopher, welcome to the podcast.
Christopher: Well, thanks for having me, Tim and Jeff. I’m a fan and I first saw about your show on LinkedIn and have been following it. And I appreciate all the work that you do. I know it’s a ton of effort, but it’s great for the community to see this.
Tim Kowal: You’re also very active on LinkedIn. You have a very active YouTube channel with a lot of commentary on some of these cases. And that’s how I got to know you as well and follow your work and commentary. I think it’s excellent. Now you didn’t start out as a celebrity family law attorney, why family law and why celebrities?
Christopher: Well, family law, I never thought would do this. When I got out a law school in 1994, I wanted to do corporate securities law, but there was no hiring. The economy was the exact opposite as is now. So not even the public defender’s office was hiring. So I just went out on my own. I was doing civil and criminal defense and the guy down the hall was doing family law and talked me into switching over. And I’m glad I did because it’s a great practice. We get a lot of client contact that you don’t get in a corporate practice, handling all aspects of their lives.
Christopher: So I developed this practice on doing complex family law litigation, and the celebrity thing just happened unintentionally. It was just as I was doing bigger cases, then started representing more high profile individuals. And so that just became its own little thing in itself. But to tell you the truth, I prefer a non-celeb case, there’s less drama, than having to deal with everything that goes along with representing a high profile figure.
Tim Kowal: Oh, interesting.
Jeff Lewis: I’ve been watching a lot of the Amber Heard trial clips, because I appear in the media every once in a while. One thing that I cannot understand, in all of these clips, I see Johnny Depp chewing gum, and I know in a Los Angeles courtroom, he would be tossed out of the courtroom for that. Do you know anything about Virginia courts and why they’re so lax about gum chewing in the courtroom?
Christopher: Every judge has their own way of doing things and it is hard as a litigant to have to sit there and listen and not react for both parties. But yeah, it’s hard. I think he’s probably got a lot of nervous energy and to sit there for eight hours and listen to all that stuff, it’s hard.
Tim Kowal: Now, Chris, how did you go about building your practice? Did you start with the commentary and build practice from there? Or how did you get up into doing these high profile cases?
Christopher: Well, I know as a young lawyer, I would see the Talking Heads starting with the OJ trial, which was in progress when I was finishing up law school. And so I saw that there was this role really as interpreter that lawyers can play for the public to understand these issues that the public is seeing in these high profile cases.
And I thought, gee, I’d always like to do that, but figured, well, I need to be more experienced. I need to build my resume. And that’s honestly a lot of things that hold back, all of us as lawyers. We’re always saying, well, once I get this certification or once I’ve handled this many cases, or once I become partner, then I will start doing whatever my dream is.
Christopher: So I wish I would’ve got started on this a lot earlier, but it is a big side job that’s unpaid. All these guest appearances that I’m doing on media, I don’t get paid for that stuff. I just like to do it. And I really respect that the citizens here want to know what’s going on in our courtrooms. And if I’m able to explain these complex things, like what does this hearsay objection mean in simple terms, I’m happy to do it.
Tim Kowal: I know you’re also very active in putting on presentations, CLE presentations for attorneys. Did that come in parallel with your legal commentary or did one proceed the other?
Christopher: Well, so when I started in family law, the guy that I went to work with and eventually formed partnership with, Peter Walzer had said all of his business came in from other family lawyers. And the way that he got that work was doing presentations at CLE events to other family lawyers and writing articles on family law and serving on family law committees. This made no sense to me that why would another family law attorney prefer work like that. But it is true. It happens.
Christopher: And so I started doing these presentations, which helped me learn family law. So when I have to speak on some family law topic, I do all the work to prepare for it because I don’t want to look like an idiot. And so that’s where I learned family law and that’s what built my referral base or book of business. And it’s been great. And as the pandemic happened and the lockdowns occurred, we couldn’t do the hand to hand marketing, the conferences in person like we had done before. So I flipped that over to webinars, which I like, because you can interact with folks on a webinar in a way that you can’t in person. You can see who’s attending, you can chat with them. You can give them shout outs. So I love it. I love doing that work.
The media commentary is completely different. I’m able to use the same technology that I have at the office with audio and video equipment, but speaking with the media is rapid fire. You’re talking 60 seconds rather than 60 minutes for CLE.
Tim Kowal: And you mentioned something to me that during… Or you just mentioned that you had turned your CLE presentations from in-person presentations into webinars. And I think you said that they’re available over YouTube. Now I take it now that they’re available to a mass market, that your participation in those is gangbusters, isn’t it?
Christopher : Well, it’s weird with lawyers because when I thought like I’m going to create some webinars and I’ll do them live and then throw them out of there on YouTube for free, nobody watches them on YouTube. And it’s something about lawyers and our love for calendaring things that makes the live presentation so much more engaging and watched than the recorded. And it’s the same content. But if I put it on LA, do a LinkedIn event, send it out to my email list, lawyers will show up because it’s in their calendar. If I have it on YouTube, but they could watch it any time, they never watch it. So if it’s not in the calendar, a lawyer won’t do it.
Tim Kowal: Yeah. It’s not a real CLE, if it doesn’t come with a rubber chicken. So you shared about how your clients find you and it’s obvious because you’re everywhere. You’re on Major Market Media, you’re on YouTube, you’re all over LinkedIn. But when your clients find you, why do your clients choose to work with you over other excellent family law attorneys in the area? What makes you different?
Christopher: Well, I think clients pick their lawyers a lot like we pick our dogs or pets, if somebody’s going to match their personality. And I’m very upfront with clients when I’m interviewing with them. And it’s a two way process, and I let them know like, hey, this is what I’m about. I’m not going to go in there and showboat, I work very hard. I’m going to put on the best case possible, but it’s going to be done in a respectful way. We’re going to follow the rules. I want to get you out of this as quickly and efficiently as possible. I’m not looking to terrorize the other side or make any points. If I’m going to say this, it may cost you a million dollars. Right now, I’m going to tell you, pay that to your partner because you would be much better off giving that money to him or her than to me.
Christopher: So most of the clients relate to that. They want to hear that message. If they’re a business owner, they’re used to doing cost benefit analysis on litigation or any business decision and that rings true to them. They want a lawyer like that, who’s not self-interested, who doesn’t have some agenda that doesn’t serve them.
Now, other clients don’t want to hear that they hear weakness. What do you mean you want to settle? What do you mean you don’t want to fight? Why are you already talking about compromise in our first meeting? Well, that’s not going to be good and so I’m very direct about that.
And also what I found is that having so much content online, especially video, is great for potential clients to vet you, because otherwise old school, they would see your bio and know what school you went to and that’s about it. And then they have to pay for a consult to listen to you and say, maybe that’s not the right fit.
I recommend this for everyone in your bios to have on your website some video clips of yourself so they can get a feeling for you, because we are spokespeople. And if you can’t speak or you don’t present in the way that the client wants, then why waste everybody’s time with a consult?
Tim Kowal: Yeah, that’s a great tip. Now, Christopher, I wanted to ask you this, since you’re an expert in high profile cases that are involved in the media, also often have rich and famous litigants, I wanted to ask you this about the concept of blind justice in our justice system, that everyone’s supposed to have the same shake in our justice system, regardless of their status, regardless of whether they’re rich and famous or poor nobodies, what have you learned through your experience in representing the rich and famous? Does the concept of blind justice hold true?
Christopher: Well, it really doesn’t. I think in criminal it can, because we have public defenders who don’t get paid a lot of money and will fight endlessly for their clients. And so I think in criminal practice, you see some equalization there for attorneys who are willing to spend a tremendous amount of time without any extra pay to represent their clients vigorously. In civil, we don’t have that. We’re all by the hour percentage. So there it is skewed. And even in these cases that I’m doing in divorce, you have a spouse who has control of the assets and can pay the lawyer freely. And then you have the out spouse, who’s always trying to jump over that wall and get access to the money and fee awards. And it’s become almost like a plaintiff and defense practice within family law. So it’s very difficult for someone who doesn’t have access to money to get access to justice.
Tim Kowal: Let me ask you a follow-up question along the same lines of whether there’s blind justice in cases involving the rich and famous.
Does the high profile nature of a case ever factor into an appellate court’s thinking? And I’m talking a court of appeal now where say for example, will the court of appeal take a closer look at a writ petition in celebrity cases, for example, if an early disposition would end what might be perceived as a media circus? Does those kind of factors come into play?
Christopher: Well, I suspect that they do. I’ve never served on the court of appeal or worked within the court of appeal so it’s all a mystery to me. But you do see cases with high profile names attached to that, whether it’s parties or sometimes lawyers or cutting edge issues, where they seem to get favored more than the humdrum stuff. And that makes sense, because if you’re on the court of appeal, you probably want to work on something that’s more interesting than not. But it honestly, in a legal analysis, should make no difference.
Now I have though seen some courts reject cases that involve celebrities where you would think that they’d really want to attach themselves to this thing, but I do think it goes into the mix. And we even seen like at the California Supreme Court, that one of their considerations on whether to grant a petition for a review is the quality of lawyering involved. So there may be some real considerations here that if, hey, we’re going to take this case, we want to make sure that the lawyers are going to do the best job possible.
Jeff Lewis: One of the things that drew me to appellate law is the group of lawyers that do appeals is much smaller than litigators. We’re much more courteous in terms of extensions and each other’s lives. And I was wondering, the group of lawyers that handle high profile cases, celebrity cases, would you say the same is true or the opposite is true, in terms of professionalisms and courtesies? What’s your experience with the celebrity bar?
Christopher: Well, it’s kind of a small practice, but there is, even within there, some divides between the white hat lawyers versus the ones that are trying to attack the celebrity. And so some have developed a practice of handling these high profile cases, but it’s always on the outside of it, that is trying to go after the celebrity. And there’s always some concern in those cases that the lawyer is basically saying, settle or if you don’t, this is going to become public. And so, there can be some bad blood that is developed, I think, within those lawyers. But I hope that I’m on the good side of things.
For me, no matter what side of the case I’m on, I want it to be quiet because of representing the celebrity, I want to get along with the other side, so they’re not running the court, doing awful things to my client, especially that’s going to be publicized. And if I’m on the outside, the out spouse side of the case, well, I don’t want to kill the golden goose. I don’t want to damage the celeb’s earning power because that is going to deprive my client in the future from support.
So I’m looking at it from a very practical standpoint. I’m nice for a reason, not just because I’m a nice guy, because I think tactically, it serves me, but then there’s other attorneys who are mean for tactical reasons.
Jeff Lewis: Now obviously these celebrity cases have the potential to bring a lot of attention to the trial courts. Do judges like this attention at all? Do they completely hate it? Is it somewhat of a mixed bag?
Christopher: Yeah. I mean, it’s very odd because if we look at an analog here of a jury trial, we would tell the jury, you cannot go on social media, you can’t look at the news, you can’t look at anything relating to this case. And in some extreme cases, we will even sequester them to keep them in their bubble. Now with judges, the canon’s judicial ethics prohibit any extra judicial investigations. So they cannot look at social media regarding their cases. But how could you avoid doing so if you have a high profile case like Depp Heard, right now, you cannot look at your newsfeed or the TV without hearing that case.
I’ve seen that in some of my cases, where references are made to social media that’s not in evidence. Well how would the court know about that if it wasn’t looking at something it wasn’t supposed to look at? So I do think that courts act differently when they know that there’s scrutiny. And that’s not such a bad thing, as long as they’re tightening up their process and saying, I know that this is being highly scrutinized so let me be on my best behavior. But sometimes, we see that scrutiny then provide a platform for them really not looking as good as they should.
Tim Kowal: Yeah. And I wanted to ask you just to quickly on the same subject, but talking about the Free Britney movement, I don’t want to go too deep in a rabbit hole about the issue of conservatorship abuse. But do you think the court was concerned about this kind of hashtag movement, the Free Britney movement and all the scrutiny that was suddenly being paid to alleged conservatorship abuse?
Christopher: Yeah. I’m glad you raised that because it was the Free Britney movement and the power of social media that broke the case open, and the court would’ve never done anything otherwise.
And just quickly looking back at the history of that case is that Britney was put into a conservatorship without notice, even though the law requires notice. The conservatorship was granted ex-party without bringing her body, her person to the court so the judge could see her eye to eye, even though the law required that. And then, when her lawyer found out about it, two days later and came into court and saying, I object, the court would not hear from that lawyer and said, I had already appointed a lawyer for you, Britney. So the court was fooled into putting that conservatorship over Britney and violating all of the legal protections that were supposed to be there for Britney and allowed that to go on for 13 years, even while she was working in a Las Vegas Residency, which should have made no sense to any judicial officer looking at this, how can somebody perform a Las Vegas Residency and be so disabled that she would need another adult to make basic decisions over her, like medical care and life and financial decisions.
So it was only when the Free Britney movement had really pushed so hard that it forced attention to the case that the court then started acting the way it should have from day one. And we’re also seeing that in Depp Heard that there was understandably a lot of people rallying along Amber Heard because we want to support and believe the victim, but then through the power of social media and her supporters showing a lot of inconsistencies in what Amber Heard has said and kind of flipping that court of public opinion.
Jeff Lewis: Yeah. That whole makeup issue with the Amber Heard, when a certain makeup was made, that’s something I think the jurors probably will never hear, but it’s all out in social media. It’s crazy.
Christopher: Well, it’s right. And what I’ve likened it to, because we work on these cases and we may think, oh, we have a big team of two or three, four lawyers and maybe some investigators and that’s our big team.
Well, if you look at Amber Heard and Johnny Depp’s case, he’s got a million people on social media pointing out inconsistencies. Amber saying, “Oh, I was bruised up on May 27th.” And then they’re finding pictures of her May 28th, 2016 with no bruise. I mean, this is an army of investigators that are out there helping him.
Jeff Lewis: Well and not just they’re investigators, I think it’s almost like crowdsourcing, because the court of public opinion seems to be on team Johnny here. And so everybody is an at-home true crime sleuth and is looking for inconsistencies. It’s crazy.
Tim Kowal: Yep. All right. Well now let’s talk about some non celebrity cases that the rest of us non celebrity attorneys handle. Now, Christopher, you shared with me an approach that you’ve used successfully in the past, and it has to do with requesting publication of unpublished court of appeal opinions, or contrary wise, requesting de publication of problematic published court of appeal opinions. Would you tell our audience a little bit about this strategy that you had told me about? I think it’s fascinating. I think our audience would be interested to hear about it.
Christopher: It’s a way to shape the law as a non-party or non-counseling to a case. And through all this bar service that I’ve done, being on these bar committees here in family law, there’s these Amicus committees. And I’ve seen how they’ll go in and try and have a case published or de published or do an Amicus brief on a pending issue, and it’s been very effective. And we’re looking at monitoring non-published decisions and saying, wow, this case would advance an issue that we need to develop in the law, and just asking the court to publish it. Or one comes out and it’s like, wow, that one’s way off the rails. We need to get this off the books and asking it to be de published.
And then the third aspect is we’re seeing an issue percolating in a case, where maybe there isn’t the horsepower there, that there’s not really strong representation on the issue. And now a bar group or an attorney wants to come in saying, hey, here’s what I have to say on this very narrow legal issue to aid the court. And through all that work, you’re now shaping California law. And it’s a great thing to do as an attorney, as a service to our community.
Tim Kowal: Now is this something that you’re doing purely in your capacity as an Amicus, just someone who is interested in the law and you have an idea of what kind of legal issues are percolating and what things are undecided and how they’re shaping up, or is there a way to use this process to help maybe future clients that you would have?
Christopher: Well, sure. I mean, I’m doing it as a student of the law and for my love of the law, but I certainly have certain areas of the law that I would like to see developed over other areas of the law. Now, we’ve seen in other practice areas, like say if you’re a defense attorney, there are very clear objectives of what they have that they want to strengthen defenses or the plaintiff spar community will want to do things to make it easier to make claims. And so their bias, whatever, is very clear.
Now in family law, it’s a little more difficult because I could be on either side of an issue in any particular case. So one day I may be arguing for the enforcement of a premarital agreement, and the next day I may be arguing against the enforcement of a premarital agreement. So it’s very difficult for me to say how any particular case would affect a client because I could be on either side of it in family law.
So where I’ve kind of settled on it is that I want consistency as much as possible in family law, because it’s an awful place to practice. It’s a court of equity. And I came from criminal at the beginning where it’s like, we have a statute, we read the statute and that’s about it. And here in equity, it’s a free for all. And so if I can find any kind of rule in family law that’s reliable enough to advise my clients on or build a case around, I’m happy about that. And when I see courts not following the few rules that we have, it upsets me and that’s where usually I’m going to step in.
Tim Kowal: Well, let me ask you now, if you’re an advocate for a client and there’s a court of appeal decision that comes down and it’s not published, but if it were published, the holding would be very useful for your client, but you don’t have any material pecuniary interest in the case that was just handed down. Under California Rule of Court 8.1120, which is the rule of court that allows any party to request that a unpublished opinion be published, it does state that any person may request. It doesn’t have to be up to that case, but it does go on to say that you have to, in your capacity as an Amicus, you have to concisely state the person’s interest and why the opinion meets the standard for publication.
Tim Kowal: Now, in your view, do you think that this statement of interest would require you in this hypothetical I set up, where you represent a client who doesn’t have a pecuniary or any interest in the other case that’s been handed down, but the holding would be advantageous to your client. Do you have to state that in the request for publication?
Christopher: That’s something I have struggled with because I don’t know if we’ve maybe read that rule too narrowly. I certainly, when I look at the rule, I say, well, did somebody pay me to do this brief? No. Now if the case were published, would that help me in a pending case? Yes. Do I need to say that? I don’t know. I don’t know. I mean, definitely, I’m stating in there. But look, I practice family law, this is all I do. So I think the court could draw from that, hey, this might end up helping one of my clients. So, I guess it would be best practice to say, oh, and by the way, court of appeal, I have a case where this is going to help me, but it doesn’t necessarily make the position any different. So I don’t know where to come down on that.
I think that the harder issue is if it’s adverse to your client. So if you have a pending case where publication of this other opinion is going to harm your client, do you have an obligation to your client not to ask for publication? I haven’t got that one yet.
Tim Kowal: Jeff, what do you think about that? I kind of share Chris’s ambivalence there, and I tend to think that no, technically, you don’t have an interest in the case, but what do you think?
Jeff Lewis: I’ve never done a request to publish or depot where I’m not representing a client, but my gut tells me that you should disclose that. For example, I’m a family law attorney who regularly practices in this area and clarification of this ambiguous rule is something that would benefit all family, law practitioners. Something like that would be helpful.
Tim Kowal: Yeah. Well, let’s talk a little bit about, since we covered the process for requesting publication of an opinion that’s been issued as a non-published opinion, contrary wise, you alluded to looking for cases that have been published, that creates some bumps in the road, let’s call them. Whether for your future clients or just for the state of the law, it’s creating confusion, it’s creating conflicts. Under Rule of Court 8.1125, the process is about the same, except you may not make that request to the court of appeal. You have to make that directly to the Supreme Court. But can you tell us a little something about your experience of making requests for de publication of court of appeal opinions?
Christopher: Yeah. Well, this is, Tim, a little bit more edgier because when you’re asking for publication, you are going to the authors of that opinion. You’re saying, “You guys are selling yourself short. This is beautiful pros here. This should be published. What are you doing?” Well, of course, that’s going to be very well received. But on de pub, you’re going to their higher court, the Cal Supremes, and saying, “Look at this awful decision. I can’t believe these people did this.” So it has to be worth your while. And I’ve just filed one of these last week, and again, in a very respectful way, I think, pointing out that it’s a horrible decision. But I also have to keep in mind, I got to practice potentially in front of these justices in the future and I’m just hoping that they don’t remember this.
Tim Kowal: Yeah. Now I wanted to ask you, because you’ve been up to the Supreme Court a couple of times, everyone who’s had the experience of losing at the court of appeal has had the frustrating experience of answering the client’s inevitable question of what next? What remedies do I have from this court of appeal opinion that didn’t go my way? And the answer is always grim. It’s well, a petition for rehearing, which is basically never granted and a petition for review, which maybe you have upwards of a 4% chance, statistically speaking. So that’s effectively never. Do you have any tips that you can share that may help get your case up to the Supreme Court? And obviously we’ve been talking about requests for publication. If you can get that thing published, then that increases your chances. Anything else that can maybe pave the way? I don’t know if there are things you can do earlier on in the case to make it newsworthy? Does newsworthiness of a case heighten your chances of getting review in the Supreme Court?
Christopher: Well, this is a mystery, I think, to all of us, because the only thing I can say consistently that I found is if I believe that the case is worthy of review, it will be denied. That’s the only thing that I found. Because every time that I’m like, oh, they’re going to grant this, how could they deny review of this issue? I always lose that. And then when I say, oh, well, come on, I wouldn’t even bother opposing this thing. Why would they take this dog? This is nothing, nothing to see here. Well, they grant that. So I guess I’m 180 off on everything.
Christopher: Like one of the cases was Marriage of Valli, Frankie Valli. I represented Frankie Valli from the Four Seasons. And that ended up going to the California Supreme Court, but on the most minor issue in the case. It was the big case we had two trials on was whether his wife had any interest in the play, Jersey Boys. That was a multi-billion dollar endeavor. And I thought, well, that’s the issue that’ll go up, if any would go up, because there’s very little law on how to apportion something like that. The issue that went up was whether him buying life insurance on his life during the marriage and naming her as the owner of that policy made it her separate property. That received, out of three trials, maybe 10 minutes of trial time. And that’s the issue that went to the California Supreme Court.
Tim Kowal: I wanted to back up, there was one other question I wanted to ask you about your strategy. And just to reprise it here, it’s basically that if you have a case involving a novel legal issue, and you can find another appellate court that hands down an unpublished case involving the same issue, you might consider requesting publication of that opinion. Now, how are you going about looking for these appellate opinions to seek to have published or to have de published? Do you have like a Westlaw alert for certain kinds of issues? What legal issues are on your radar these days?
Christopher: Well, this is the beauty of being involved in bar organizations, whether it’s L.A. County Bar Association or any of the specialty bar groups, is that there’s lawyers and judges on those committees that are following published and unpublished decisions. And then there’s the list served that’s discussing certainly the new published decisions. So that’s the way I’m keeping my finger on the pulse of things. And you can go to the Cal Court’s website and see all their unpublished decisions if you wanted to follow that. But mostly, it’s one of us on this committee that happened to see this. And it may be one of the council for the parties in that unpublished decision saying, Hey, you got to take a look at this. This should really be published, probably because they want another published decision for themselves, but that percolates up there.
So that’s the way I’m monitoring it. And it’s really looking at inconsistencies in the court of appeal. And that’s certainly going to get everybody’s attention saying, well, how can two different appellate courts look at the same issue and come to different conclusions? And that certainly is going to increase the odds of the California Supreme Court granting review.
Tim Kowal: Right. So you’re teaming up with other like-minded family law practitioners who are all looking at these kinds of important issues that are percolating up and down the court system. And so if a zinger comes out, then you’re likely to get an email from one of your bar associations saying, “Hey, Christopher, you might want to write this one up?”
Christopher: Yeah, first in a committee we take a vote on it and say, “Hey, as a bar group, are we going to get behind this and write a letter?” If not, and if I feel strongly about it, then I’ll write on my own behalf. And I don’t know that it carries any more weight. To me, whether it’s coming from Chris or whether it’s coming from bar organization, it shouldn’t make a difference. It should be the content of that letter that counts.
Tim Kowal: Yeah. How often are you sending up these requests for publication or de publication?
Christopher: So I would say several times a year, probably four times a year, I’m doing that.
Then in this last California Supreme Court case, which is Brace, I just asked for permission to write an Amicus brief, and that was a certified questioned by the ninth circuit on a California community property issue that the California Supreme Court took up. And I noticed that there, it came from bankruptcy. So the counsel that was involved in that case were both bankruptcy counsel, who didn’t have subject matter expertise in family law. And that’s why I figured, well, gee, I really don’t want this coming out the way it could come out. So I asked for permission to write this Amicus brief and that the counsel on whose client’s behalf I was supporting was kind enough to carve out 10 minutes of his oral argument time for me to argue as an Amicus.
It was a huge amount of work, unpaid, but the payoff was incredible because I got to be involved in this issue, made sure that it came out the way I thought it should come out, got to argue it, advance the law. And it was no better use of my free time.
Tim Kowal: Well, Chris, I really appreciate your contributions to the bar and to the public and talking about educating the public about these important issues that are coming out. And I really find it interesting and admirable that you’re spending your free time monitoring the cases that are coming out and sending up requests to the appellate and Supreme Court about some of these opinions that may be sending our law into some confusion.
Do you have any other tips or words of advice for our attorney listeners or war stories you’d like to share?
Christopher: Well, the thing is getting engaged. And we can see that this community here is so important that we support ourselves, we understand what we can do to contribute to the law. So I would encourage everyone to be engaged more. And it’s been super beneficial to me just personally, I feel good about being a lawyer when I do this, but it’s also been great for business. So if you have any questions about ways that you can get involved and what are the steps to do this bar service and how to convert that into referrals, just call me or email me. I’m happy to help because I learned all this stuff from Peter Walzer and he learned it from his dad, Stewart Walzer. So I’m happy to share the secret sauce here of my success.
Tim Kowal: All right. Now I think, Jeff, do you have some of the real hard questions for Chris now?
Jeff Lewis: Yeah. We conclude our interviews with the most important and scintillating questions that Beck’s appellate nerds around the world. Short responses, one sentence, and Tim and I always learned something new from these questions. Our last recording, we learned about a new way of formatting arguments I hadn’t heard of before. It’s always interesting. So here is our patented copyrighted lightning. In terms of your appellate briefs that you file, what is your font preference? Century Schoolbook, Garamond or something else?
Christopher: Oh, Century Schoolbook. Love it.
Jeff Lewis: Nice. That’s the correct answer.
Tim Kowal: Agreed.
Jeff Lewis: Two spaces or one after a period?
Christopher: There can only be one.
Jeff Lewis: All right. And is it pronounced Amicus or Amicus or something different?
Christopher: I use them interchangeably because I have no idea.
Jeff Lewis: That is also the right answer. Although I say it Amicus. Pled or pleaded?
Christopher : Pled. It’s got to be pled.
Jeff Lewis: Correct.
Tim Kowal: Well, we’re not all perfect.
Jeff Lewis: Where did you find this guest? He’s amazing. All right. When we’re talking about your headings of arguments in your brief, not the table of contents or table authorities, but actually the arguments. Do you do all capital letters, initial caps or sentence case?
Christopher: Sentence with a period at the end so the table of contents reads my argument.
Jeff Lewis: Oh, bold. Very bold. All right. And your text of your arguments left justify or full justify?
Christopher: Left justify.
Jeff Lewis: Nicely done. All right. Final question. After major heading in a brief, you start the next section on a new page or continue immediately below?
Christopher: I continue immediately below as long as I don’t have a widow or orphan. Yeah.
Jeff Lewis: Fantastic. Yeah. All right. You survived the dreaded lightning round and well done. If we were successful as you, we’d send you a t-shirt or a mug, but instead, you just get our thanks.
Christopher: Love it.
Tim Kowal: All right. And so now we have just a couple of cases and news and tidbits we wanted to share and Chris has agreed to stick around and take pot shots if he has any. The first one, the first case I wanted to talk about, I think I just had one case I wanted talk about today. And that was it is People versus Whitmore. And it’s a California Court of Appeal decision that holds if there is no right to in-person appearances in a sentencing hearing.
So the defendant in that case had specifically invoked his constitutional and statutory right to be personally present at the sentencing hearing. But the court held that limiting a defendant to a virtual appearance was legally improper, but it created no harm. And so therefore, it was harmless error and the court affirmed the 10-year sentence.
My thought on this was isn’t that structural error? There are certain kinds of errors, like denial of a jury trial, for example, that the court of appeal broached the subject of trying to figure out, well, would it really have resulted in a different outcome if we had given this defendant a jury? We don’t even go there. We just say, you had a right to it. This is the way we hold our trials. It didn’t happen here. Reversed and remanded, hold a new trial. How am I wrong?
Hearing no objection.
Jeff Lewis: Yeah, that’s an interesting one. One could say you’re building a structural avalanche or tsunami of appeals during COVID, if you’re going to take the position that a virtual appearance is not adequate. So there might have been a little bit of self-interest by the courts in this ruling.
Christopher: Yeah, I would think, and the California constitution says that no judgment shall be set aside unless there’s a miscarriage of justice. So we do have this concept of harmless error. And I’m going to have to look at that case to see how the defendant articulated the prejudice, because being there, I understand there’s a right of confrontation in a criminal trial under the Sixth Amendment, but here, this is a confronting, a witness is confronting the judge that’s sentencing. And maybe the argument is that the court would’ve felt more sympathetic looking at a live human than a virtual human. And maybe that’s the best argument that could be made, and in a matter that’s so serious. I don’t know. I’m going to have to look at that and see why they said harmless.
Tim Kowal: So here are the ideas that I could come up with. If I had to face this rule and I had to show that there was prejudice resulting from holding a virtual hearing, rather than the in person hearing that my client was entitled to, I would argue maybe there was poor audio quality or a poor connection quality in my Zoom appearance. And I you’d have to object early and often if that happened to make a record of that. Another idea would be that maybe if someone is speaking off-camera, it has happened sometimes, like a clerk, keep alerting the court that it sounds like someone is speaking off-camera. I can’t hear what’s going on. Just keep making a record that there is something unsatisfactory about the way this hearing is being conducted. And then my favorite example, maybe most fanciful example would be gesticulate a lot. Throw your hands around. Say that I prefer to stand, but I’m going to have to adjust my camera. And just make a record of how disruptive it’s being to be able to present your argument in your preferred way.
Jeff Lewis: Yeah. Because appellate justices really love reading our briefs and that is only exceeded by the loves trial judges have for gesticulating counsel, that waves arms and rolls their eyes during argument. I’m not sure how I feel about that last suggestion there, Tim.
Tim Kowal: Well, but this is all I can come up with. I mean, if it’s not structural error, I don’t know of any way to enforce this constitutional-
Jeff Lewis: Show prejudice.
Tim Kowal:… right to an in-person trial.
Jeff Lewis: Good point. Fair point on the issue of constitutional right to be present and structural error, there’s an interesting case that came out of Fourth District Division 2 that’s for a Riverside case. And Riverside, like Orange County where you and I practiced, Tim, has this requirement that before trial, you got to have a meet confer with the present counsel, have all your exhibit and witness list and make a pretty binder with all the joint pretrial documents. You hand that to the clerk the day before trial. And I guess, this rule was in effect in Riverside. Somebody didn’t comply. They showed up for a jury trial. The judge said, nope, you’re going to have a bench trial and found that the jury trial was waived. And one interesting side note, a judge who made this determination and ruled in the bench trial also was a settlement judge, served as a settlement judge.
Jeff Lewis: So the appellant who lost this case went up on appeal, pointed out, “Hey, I complied with the rule.” Court of appeal didn’t like that argument, and said, no, he didn’t comply with the rule. He did show up with the binder. And B, that there wasn’t a valid waiver of a constitutional right to a jury trial. And that got the court’s attention. It was interesting. So they reversed and found that failure to comply with the local rule, at least under these circumstances, can’t constitute a waiver of a jury trial. They did leave some wiggle room that had the trial court given some notice like, “Hey, you didn’t turn in your binder. We’re going to have an OSC re-striking your right to a jury trial in two weeks. You could brief the issue.” If the trial judge had done that, perhaps the waiver might have been effective. But it’s an interesting issue. It’s a published case.
Tim Kowal: And I take it there’s no analysis of prejudicial error because-
Jeff Lewis: Structural.
Tim Kowal: Yeah. Deprivation of a jury trial is structural error.
Jeff Lewis: Yeah…
Christopher: Yeah. And that’s where I saw, in a recent decision that I lost, where the court did apply the waiver rule like it should be, that it has to be a knowing, involuntary relinquishment. And sometimes, they just don’t apply that I guess, if they don’t want to, but that’s technically right. And that’s where I’m trying to build into my stipulations to make it clear that somebody knows that they have this right and they’re giving it up. And we’ve seen that recently in a First Amendment case where there was a settlement that somebody agreed not to speak. And then tried to challenge that to say, “Well, hey, I gave, I didn’t voluntarily, knowingly give up my First Amendment right here.” So I think practice tip for all of us is spell out waiver.
Jeff Lewis: Yeah. Okay. I also wanted to share something that Myron Moskovitz wrote in the April 14th, 2022 Daily Journal, where he criticized oral arguments on appeal as being largely futile. And this is a subject that we’ve discussed on this podcast. But Myron Moskovitz says something that sparked an idea, I wanted it to both of you here. So here’s Myron Moskovitz’s quote. “I have fully endorsed the slowly growing practice of issuing tentative opinions and focus letters that let the attorneys know before oral argument, what the judges see as the key issues. This makes the argument much more meaningful and sends the message that the court is truly interested in getting attorneys input into how the appeal should be resolved.”
Jeff Lewis: So after I read that, here’s the idea that it sparked. So here’s the proposal I’d like your comments on.
So we know the California courts cannot deny litigants’ oral argument because that’s a constitutional right. Litigants have a right to oral argument. But what if the courts issued invitations to oral argument in certain cases, when the court was interested in hearing about these issues. Invitations would be, that’s basically what the tentative opinion is. So when they issue a tentative opinion, the courts are saying, this is what we are interested in, but most courts don’t issue the tentative opinions. But what if they don’t have to do the tentative opinion, they can just say we invite oral argument. They don’t have to dis invite oral argument, they can’t do that. But just saying that we’re looking forward to your oral argument. That kind of sends a signal that, hey, we’ve got a chance here. So let’s give it our best. Let’s really work it up.
Oral argument can cost a lot of money to the client because the attorney’s got to go through the entire record again and get ready to be asked any question about any of the issues, facts in the record. And if you’re not going to be asked anything, if you’re just going to get up there and speechify to a cold bench, it’s just a waste of your time and the client’s money. And so maybe these invitation letters would be a good way to focus the attorneys and to save, to be an access to justice issues so that litigants don’t have to waste money on oral arguments that are going to be pointless.
Tim Kowal: Do you think you could draw a line between them sending those letters out, what do you call focus letters or issue spotting letters or whatever? Do you think you could draw a line between that and an actual drop in request for oral argument? Because I think lawyers will still want to argue, either because they’re stubborn or because they want to bill the hell out of the file or because their clients are saying, I want my day in court. I don’t think there would be an appreciable drop in the request for oral argument.
Christopher: Yeah. That’s my sense too, is that, certainly, the argument’s going to occur, but then at least, it could be prepared. And then it would reduce a little bit of anxiety because going into these, I always figure, like I won this one or whatever. And then it’s just more like blood sport that we go in and it’s all of a sudden we hear like, how is this happening and where did this come from? And I don’t think it would take a whole lot more preparation for the court to do that because there’s probably already drafted that opinion. But I rarely, rarely see any indication other than through the contempt of the court towards counsel about where they’re going during oral argument.
Tim Kowal: Yeah.
Jeff Lewis: Yeah. I don’t know if reducing appellate lawyer’s anxiety is in the top 10 list of appellate justice’s concerns, but maybe we’ve to get an appellate justice here as a guest of the podcast and we’ll laugh.
Tim Kowal: I thought I’d get you with access to justice, Jeff, that those clients who do, who don’t have the unlimited budget and would like to limit their expenditure could say, well, if the court is really not going to be receptive to whatever we say at oral argument, do I really want to spend the thousands of dollars to prepare my attorney to go out there?
Christopher: No. Those clients would just say, “Hey Tim, would you go out pro bono?” Would you go argue at pro bono?
Jeff Lewis: Well, but we know our expectations. I did have one other case that I wanted to bring up. I have to mention it since we have Chris here because I had followed Chris’s advice and I had sent up a request for publication after I wrote up this arbitration case Crotch versus California Commerce Club, back in April. I decided that the opinion raised some interesting issues and it ought to be published. And today, the court modified the opinion and partially published it. The holding is that the right to arbitrate is not waived even if the party invoking arbitration happily litigated for 13 months. The newly narrowed holding is that the showing of prejudice to establish waiver cannot be met merely by litigation costs, which is all the plaintiff phrased here. You have to go further and argue something else other than it cost me money by the moving party’s delay.
Christopher: Wow.
Tim Kowal: All right. Interesting. All right. Well, I think that wraps up this episode.
Jeff Lewis: We want to thank international family law attorney Christopher Melcher again for being with us today.
