April 18, 2008

Court of Appeal May Have Been Too Quick on the Trigger in Buell-Wilson Post-Opinion Order

We've been following the twist and turns in Buell-Wilson v. Ford, in which the Court of Appeal reaffirmed a $55 million punitive damages award even after the US Supreme Court vacated their prior opinion affirming that same award.

Last week we blogged about a rather harsh order from the court denying Ford's petition for rehearing. The order said "Ford asserts that our opinion erroneously states that counsel conceded at oral argument that Ford failed to raise instructional error in the first appeal." The court then proceeded to quote from the transcript of the oral argument to show that Ford's counsel had in fact conceded that very point at oral argument. The court next took the rather unusual step of modifying its opinion to add this discussion, which seems to serve no other purpose than to embarrass Ford's counsel, Gibson Dunn.

A number of attorneys in our firm wondered why Gibson's experienced appellate team would make such an easily refuted argument? Why would they contend they didn't concede something at oral argument, when the portions of the transcript quoted by the court clearly show that they did in fact concede this point? Surely they must have requested a copy of the recording of the oral argument, and if they did, why would they claim they didn't concede something when the transcript clearly shows they did?

We figured there had to be more to the story, so we took a look at Ford's petition for rehearing. As it turns out, there is indeed more to the story. As far as we can tell, Ford did not even make that argument that the court ascribes to it. Ford didn't argue, "We never conceded at oral argument that we failed to raise instructional error in the prior appeal." They argued, "We never conceded that our failure to raise the instructional error in the prior appeal amounted to a forfeiture." That's a big difference. The transcript excerpts quoted by the court don't indicate that Ford's counsel conceded a forfeiture; he only conceded that the issue wasn't raised in the first appeal. But then he went on to say: "I think we fully preserved the issue fully by making our proposal [in the trial court] . . . now that there has been a vacating of the judgment, the issues are fresh before the court, we fully briefed them, they are important issues of public policy so we think it's fully appropriate for this court to address the jury instruction issue . . ." (You don't need to take our word for it - - you can view the rehearing petition here.)

Perhaps the court simply misunderstood the distinction between (a) conceding that the issue wasn't raised and (b) conceding that the failure to raise the issue amounted to a forfeiture. Admittedly it's a somewhat subtle distinction buried among a lot of other issues on appeal. But the court should have given this issue a very careful look before modifying its opinion in a way that impugns the reputation of counsel. As the late Bernard Witkin observed, the criticism of an attorney in a published judicial opinion is a severe sanction. (See 1 Witkin, Cal. Procedure (4th ed. 1996) Attorneys, § 621, p. 732.)