Deciding to Appeal Counseling Your Client Martha Pierce Juvenile Law Section June 16, 2011.

Deciding to AppealCounseling Your Client

Martha PierceJuvenile Law Section

June 16, 2011

Rules of Prof. Conduct, Rule 2.1ADVISORIn representing a client, a lawyer

shall exercise independent professional judgment and render candid advice. In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors that may be relevant to the client's situation.◦UT R RPC Rule 2.1

CommentsScope of Advice[1] A client is entitled to straightforward

advice expressing the lawyer's honest assessment. Legal advice often involves unpleasant facts and alternatives that a client may be disinclined to confront. In presenting advice, a lawyer endeavors to sustain the client's morale and may put advice in as acceptable a form as honesty permits. However, a lawyer should not be deterred from giving candid advice by the prospect that the advice will be unpalatable to the client.◦ UT R RPC Rule 2.1

[2] Advice couched in narrow legal terms may be of little value to a client, especially where practical considerations, such as cost or effects on other people, are predominant. Purely technical legal advice, therefore, can sometimes be inadequate. It is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice. Although a lawyer is not a moral advisor as such, moral and ethical considerations impinge upon most legal questions and may decisively influence how the law will be applied.

[3] A client may expressly or impliedly ask the lawyer for purely technical advice. When such a request is made by a client experienced in legal matters, the lawyer may accept it at face value. When such a request is made by a client inexperienced in legal matters, however, the lawyer's responsibility as advisor may include indicating that more may be involved than strictly legal considerations.

[4] Matters that go beyond strictly legal questions may also be in the domain of another profession. Family matters can involve problems within the professional competence of psychiatry, clinical psychology or social work; business matters can involve problems within the competence of the accounting profession or of financial specialists. Where consultation with a professional in another field is itself something a competent lawyer would recommend, the lawyer should make such a recommendation. At the same time, a lawyer's advice at its best often consists of recommending a course of action in the face of conflicting recommendations of experts.

Offering Advice [5] In general, a lawyer is not expected to give advice

until asked by the client. However, when a lawyer knows that a client proposes a course of action that is likely to result in substantial adverse legal consequences to the client, the lawyer's duty to the client under Rule 1.4 may require that the lawyer offer advice if the client's course of action is related to the representation. Similarly, when a matter is likely to involve litigation, it may be necessary under Rule 1.4 to inform the client of forms of dispute resolution that might constitute reasonable alternatives to litigation. A lawyer ordinarily has no duty to initiate investigation of a client's affairs or to give advice that the client has indicated is unwanted, but a lawyer may initiate advice to a client when doing so appears to be in the client's interest.

Reasons Not to Appeal

1. To prove client loves child, fought for child.

To prove love . . . show you fought . . ETHICAL CONSIDERATIONS:

Candid advice. . . . Honest assessment . . . Unpalatable . . . Moral, social considerations . . . Recommending a course of action . . . Initiating advice . . . More may be involved that strictly legal considerations . . . Effects on other people.

◦UT R RPC Rule 2.1

.

Prove love . . . Show you fought

◦Love and bonding is not a basis for appeal. In re B.R., 2007 UT 82, ¶ 15; 171 P.2d

435.

An appeal may not be the best way to show love and valor.

E.g., ◦The worker found the house dirty

and cluttered. The floor was covered with food and soiled diapers. Dirty dishes, with aged, crusted food, were piled in the kitchen. The workers reported the children, especially the baby, were so thin they appeared malnourished. In re S.T., 928 P.2d 393, 395 (Utah Ct.

App. 1996)

Reasons Not to Appeal

2. Your client feels that the court should have placed the children with a relative.

Independent professional judgment and render candid advice.

Relative placement not a factor in termination decision.

◦ In re W.P.O., 2004 UT App 451, ¶ 11; 104 P.3d 662.

Reasons Not to Appeal

3. Your client thought the judge was unfair, biased, prejudiced, or did not like him/her.

Render candid advice.

Relevant moral and ethical considerations.

Judges are presumed to be qualified, can’t infer bias from random comments, adverse rulings. In re M.L., 965 P.2d 551, 556 (Utah Ct. App.

1998)

Reasons Not to Appeal

4. The court did not believe your client or your witnesses and did not say why.

Relevant moral and ethical considerations

Judge gets to determine credibility, doesn’t have to say why. In re S.T., 928 P.2d 393, 399 (Utah Ct. App.

1996).

Reasons Not to Appeal

5. You disagree with the outcome. ◦ The judge has the right to be wrong

when: Making credibility judgments.

In re S.T., 928 P.2d 393 (Utah Ct. App. 1996). Weighing the evidence.

In re B.R., 2007 UT 82, ¶ 14; 171 P.2d 435. Making inferences.

Appellate court defers to juvenile court “with respect to the witnesses in assessing credibility and personalities.”In re S.Y., 2003 UT App. 66, ¶ 11; 66 P.3d 601.

Continued from previous slide

The judge has the right to be wrong when:◦ Adding up the facts

In re B.R., 2007 UT 82, ¶ 14; 171 P.2d 435.

◦ You go along with it (invited error) Mother could not claim that the court erred in

relying on evidence from shelter hearing when her counsel invited the juvenile court to consider such evidence. In re C.I., 2009 UT App. 141.

The judge has to be more than wrong and the error must be a legal one and big enough to affect the outcome.

Utah R. Evid. (1)

(a) Effect of erroneous ruling. “Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and◦ (1) Objection. In case the ruling is one admitting

evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or

◦ (2) Offer of Proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked. Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.”

Generally, the most you can hope for is a second trial . . . before the same judge. . .

Do you really want to put your client or your child through that?

More may be involved than strictly legal considerations.

May consider effects on other people.

Relevant moral and ethical considerations.

Independent, professional, candid advice.

Rule 2.1

If you must appeal . . .Counsel your client.

Preserve your claim.

Make a record.

Consider asking for a stay.

PRESERVING YOUR CLAIMIf you didn’t object, didn’t make

an argument and didn’t ask for a ruling…

The law says you’re ok with it.

PRESERVING YOUR CLAIM

(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and◦ (1) Objection. In case the ruling is one admitting evidence, a timely objection

or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or

◦ (2) Offer of Proof. In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked. Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

(d) Plain error. Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.

Utah R. Evid. 103

You have waived an issue when. . .

You failed to object on the record, state authority and ask for a ruling. ◦In re E.R., 2001 UT App. 66, ¶ 9; 21

P.3d 680; Utah R. Evid. 103(a)(1).

You did not proffer what the evidence would have shown. ◦Utah R. Evid. 103(a)(2)

You have waived an issue when. . . When the error took place off the

record and you did not put it on the record.

You fail to make sure the exhibit is in the trial record.

The findings are inadequate, but you did not object to them. ◦ In re K.F., 2009 UT 4, ¶ 64; 201 P.3d 985.

You have waived an issue when. . . You failed to obtain a transcript

or to make sure the record is transmitted. ◦In re H.H., 2011 UT App. 44, ¶ 3; 248

P.3d 1036. ◦Utah R. App. P. 11(e)(2).

But I didn’t get a chance to object!That was your chance. Say: “Your Honor…

◦…I’d like to make a record.”◦…I would like an evidentiary hearing.”◦…I’d like to leave to brief an issue and to

seek a ruling from this court.”◦…I’d like to proffer the evidence on the

record.”◦…I’d like to state for the record the

agreement we just made at side bar/ in-camera.”

MAKING A RECORDIf it’s not on the record it didn’t

happen.

Making a Record

◦ Utah R. App. P. 11(c) – the appellant . . . shall take any other action necessary to enable the clerk of the trial court to assemble and transmit the record.

◦ Utah R. App. P. 11(c)(2) – “If the appellant

intends to urge on appeal that a finding or conclusion is unsupported by or is contrary to the evidence, the appellant shall include in the record a transcript of all evidence relevant to such finding or conclusion. Neither the court nor the appellee is obligated to correct appellant’s deficiencies in providing the relevant portions of the transcript.”

CHECK OUT THE RECORDMake sure the court ended up

with the exhibit.

It’s your job to make sure the record is complete.

Check the other parent’s file, the sibling’s file.

An Appeal Does Not Stay the Proceedings

Ask first at the trial level, then at the appellate level.

Utah R. Civ. P. 62; Utah R. App. P. 8.

The Jensen v. Schwendiman factors:

◦(a) the applicant makes a strong showing that he is likely to succeed on the merits of the appeal;

◦(b) the applicant establishes that unless a stay is granted he will suffer irreparable injury;

◦(c) no substantial harm will come to the other interested parties, and

◦(d) a stay would do no harm to the public interest. 744 P.2d 1026, 1027 (Utah Ct. App. 1987).

If you want to change the law…

Bad facts make bad law:

Write your brief first and wait for the right set of facts.

THE DECK IS STACKED(the presumption of regularity).

¶ 21 . . . Losing in court comes with consequences. . . . An appellant must do the heavy lifting because the law otherwise presumes that all was well below. ◦ State v. Robison, 2006 UT 65, 147 P.3d 448, 452

(citations omitted).