Legal Question in Appeals and Writs in California

Re: Overcoming the system...

It is imperative that the information you subsequently discovered be made part of the record, that is, it has to be filed with the court for it to be noticed or taken into account. Have your lawyer consider a Rule 60 motion to vacate the judgment, reconsider, etc., based on the judge's appearance of impropriety and duty to have recused herself. (I am taking your description of district court literally, meaning you were in federal, not state, court.) At least by filing the paperwork with such "new" material, it can then be "added" to the excerpts of record, or even possibly appealed itself if the district court denies relief. The two appeals would then be heard together.

You should ask your lawyer about associating an appellate attorney who is familiar with any ways to accomplish this.

Re: Overcoming the system...

Litigants who lose often believe their judge was corrupt. They are almost always wrong. Almost.

Your facts probably sound worse than they are. If the judge's husband doesn't get any money from the defendant, she has no economic incentive to rule in his favor.

But an appearance of impropriety is nearly as serious an issue as actual impropriety. Based on the limited information you have provided, it seems her impartiality can reasonably be questioned.

Ordinarily, the judge would disclose her relationship as soon as the potential conflict came to light. Parties who did not object would be deemed to accept the judge.

Also, the fact that you lost does not mean the judge ignored your evidence or plotted against you. It may be that she simply decided your position was wrong. She might even be right.

The fact that you hired such a renowned expert also does not mean you were entitled to win; if the system worked that way then it really would be a mockery of justice. I once worked on a case where the same expert you had was working for our opponent; his opinion did not save the day for his client then, either.

What kind of hearing will you have in May? Your question makes it sound like you already filed an appeal and that May is when the appellate court will hear oral argument. Since state appellate courts seldom announce their calendars that far in advance, you are probably in the Ninth Circuit federal court.

I am acquainted with several Ninth Circuit judges, and they are all *very* smart and honorable people. I can't imagine any of them compromising their ethics on any case for any reason. You should not be concerned about this.

On appeal, the written briefs are far more important than the oral argument. By now those briefs must be done, so there is nothing you can do now to improve them. Gearing up for the oral argument is better than not doing so, but if your briefs weren't good then your case may already be in serious trouble.

I don't know whether you have an attorney at the moment, but if you don't you should get one right away. For someone unfamiliar with the process, facing even one judge is bad enough, but in an appelate argument there are three -- and they often have lots of difficult questions they want answered. Have an experienced attorney argue the case if at all possible.

Please feel free to contact me if you want to discuss this matter further. I have handled many appeals, and the State Bar's Board of Legal Specialization has Certified me as a Specialist in Appellate Law. Fewer than one in 600 California lawyers has this certification, so hopefully you will be willing to put some faith in my abilities.

Re: Overcoming the system...

Now that you face the prospect of appeal, it's almost certain that you will face a panel of judges without any personal or financial stake or interest in your case. In that sense, you have nothing to worry about. Issues of bias at the appeal level are generally only a factor in ideological or political questions, where sometimes the political philosophy of the justices will influence the outcome of the case.

I can't determine what procedural stage you are at right now from your post. But if you decide you want to appeal, and haven't done so yet, make sure that you file a notice of appeal before the expiration of the deadline to do so. Failure to promply file will lead to the almost certain foreclosure of any possibility of appeal.

Good luck.

Matthew C. Mickelson