Today's DJ has retired Justice Cynthia Aaron in The Value of an Appellate Perspective in Mediation, which begins:
One of the most important questions in the mind of an attorney going into a mediation is, “What is the likely outcome if this case goes to trial?” This is clearly an important consideration. But an equally important and often overlooked question is, “Even if I prevail in the trial court, what is the likelihood of the judgment being reversed on appeal?” ....
While I was on the Court of Appeal, my colleagues and I conducted a number of settlement conferences in cases pending appeal, on request of the parties, and were able to settle most of those cases. Many other cases settled on their own while an appeal was pending, resulting in dismissal of the appeal. Experienced attorneys are aware that victories in the trial court can be, and often are, short-lived. A mediator with experience as an appellate judge knows this and is in a unique position to assess, based on having reviewed thousands of post-trial judgments and summary judgments, whether a judgment is likely to be upheld on appeal.
“[t]he general rule [is] that judicial decisions are given retroactive effect.” ’ ” (Frlekin v. Apple Inc. (2020) 8 Cal.5th 1038, 1057.)
But, is the “truth” revealed in an appellate court decision always applied retroactively? No. Courts refuse to apply decisions retroactively “[w]hen considerations of fairness and public policy are so compelling in a particular case that, on balance, they outweigh the considerations that underlie the basic rule.” (Newman, supra, 48 Cal.3d at p. 983.)
when approaching the issue of whether an appellate court decision should be applied retroactively, consider the following checklist:
- How extensive and reasonable was reliance on the rule that preceded the appellate court’s decision?
- Will retroactive application of the new decision result in a deprivation of vested property rights?
- Will retroactive application of the new decision adversely impact the administration of justice?
- Does the decision overrule or disagree with a previously unquestioned body of law?
- Does the decision announce a genuinely new rule of law?
On October 5, the FBA-LA presents its annual SCOTUS Review by Dean Chemerinsky at the Doubletree in DTLA. Details here.
The U.S. Supreme Court heard just 59 cases this past term and only a fraction of those were the kinds of business disputes that pay the bills at the Supreme Court practices at major law firms. The shrinking docket has compelled high court advocates to shift their appellate focus from the justices to the federal circuit courts, which lack the discretion to say no to an appeal request.
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