It's not every day that First District Court of Appeal Justice J. Anthony Kline likens himself to Mitt Romney. Nor do meetings of the august Association of Business Trial Lawyers often descend into catcalls and Bronx cheers.
It was that kind of debate Tuesday night as Kline and appellate specialist Jon Eisenberg sparred over what is obviously a touchy subject for trial lawyers: preserving objections for appeal without raising the ire of a trial judge.
Specifically at issue during "Ten Ways to Kill Your Appeal Before It Starts" was Transport Insurance Co. v. TIG Insurance Co., an appeal litigated by Eisenberg's former law firm last year before Kline's appellate panel. At trial, after Transport lost a summary adjudication motion, the company acquiesced to jury instructions incorporating the judge's ruling. When Transport tried to challenge the instructions on appeal, Justice James Richman held that the company had invited any error by acquiescing.
Eisenberg argued that the decision unfairly forces trial counsel to reargue issues already lost, which can strain relations with trial judges. He clearly had a sympathetic audience. When Eisenberg quoted from Richman's opinion — that "advocating a position with an experienced judge would somehow 'aggravate' her is sheer speculation" — the usually formal ABTL crowd momentarily seemed to morph into Britain's House of Commons, letting loose a round of jeers.
"I can't let this go on any longer," Kline interjected. "I signed that opinion and I'll defend it."
Kline noted that the trial judge had provided an express opportunity to reopen the disputed issue. "Jon's perspective on the facts of this case is divorced from reality," he said.
"Forget facts, focus on rationale," replied Eisenberg.
That's when Kline invoked Romney and the presidential debates. "I gave you your time, now give me mine," he said.
Supreme Court Justice Carol Corrigan, who was moderating the debate, felt compelled to intervene. "Turning to peace in the Middle East," she joked.
Corrigan said the "vast majority of trial judges aren't going to rise up in wrath" over a renewed objection, particularly if it's done diplomatically. "You don't have to say, 'Remember in summary judgment when you fell on your head and made that ruling?' "
The fourth panelist, Arnold & Porter partner Jerome Falk Jr., agreed with Corrigan. But from the muttering that continued around some dinner tables, it wasn't clear that the House of Commons had been persuaded.