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A Word to the Wise About Lawyers

Not all lawyers are alike and some, unfortunately, take shortcuts that can have serious consequences.  I provide you with the following excerpt from a recent decision by California’s Fourth Appellate District.  While the facts of the case are interesting in and of themselves, the opening paragraphs are very telling regarding unacceptable work by attorneys.

We reluctantly return in this case to the question of default judgments with a cautionary tale – well, three actually. The first is a tale for plaintiff‘s attorneys, who may assume a defendant‘s default is an unalloyed gift: an opportunity to obtain a big judgment with no significant effort. It is not. Instead, when a defendant fails to timely respond to the complaint, the first thing plaintiff‘s counsel should do (after offering an extension of time to respond) is review the complaint with care, to ascertain whether it supports the specific judgment the client seeks. If not, a motion to amend is in order. In this case, counsel for plaintiff Gil Kim failed to do that. Instead, he simply asked the court to enter defendants‘ defaults on the complaint as initially alleged. Unfortunately for Kim, the factual allegations of that complaint do not support any judgment in his favor.

And even when the allegations of a complaint do support the judgment plaintiff seeks, he is not automatically entitled to entry of that judgment by the court, simply because defendant defaulted. Instead, it is incumbent upon plaintiff to prove-up his damages, with actual evidence. It is wholly insufficient to simply declare, as Kim did here, that defendants‘ breach of one or more promissory notes ―caused [him] tremendous financial loss, and that a judgment of ―$5 million against each defendant, for a total of $30 million . . . would be a reasonable sum. That evidence may establish the amount Kim feels entitled to recover, but it fails utterly to demonstrate what he is legally entitled to recover. Kim‘s failure to offer any significant evidence to support his damage claims precludes any monetary judgment in his favor.

We consequently reverse the default judgment entered in Kim‘s favor, and remand the case to the trial court with directions to enter judgment in defendants‘ favor.

The second cautionary tale is for trial courts. And it‘s not the first time we have told this tale. As we previously explained in Heidary v. Yadollahi (2002) 99 Cal.App.4th 857, 868, ―[i]t is imperative in a default case that the trial court take the time to analyze the complaint at issue and ensure that the judgment sought is not in excess of or inconsistent with it. It is not in plaintiffs‘ interest to be conservative in their demands, and without any opposing party to point out the excesses, it is the duty of the court to act as gatekeeper, ensuring that only the appropriate claims get through. That role requires the court to analyze the complaint for itself — with guidance from counsel if necessary — ascertaining what relief is sought as against each defaulting party, and to what extent the relief sought in one cause of action is inconsistent with or duplicative of the relief sought in another. The court must then compare the properly pled damages for each defaulting party with the evidence offered in the prove-up. Unfortunately, the trial court in this case seems not to have done that, and instead simply gave Kim what he asked for – which in this case was $30 million. Even more unfortunately, this trial court is certainly not alone in doing so, even since Heidary was published. (See, e.g., Electronic Funds Solutions, LLC v. Murphy (2005) 134 Cal.App.4th1161 [$8 million in compensatory damages awarded on a complaint alleging $50,000 in damages].) We need to shore this up. The court‘s role in the process of entering a default judgment is a serious, substantive, and often complicated one, and it must be treated as such.

And third, this case is a cautionary tale for appellate counsel. Those who practice before this court are expected to comport themselves honestly, ethically, professionally and with courtesy toward opposing counsel. The fact a respondent has no obligation to file a brief at all, in no way excuses his counsel‘s misconduct if he chooses to do so. The conduct of Timothy J. Donahue, Kim‘s counsel herein, which included seeking an extension of time to file his brief under false pretenses, and then filing a brief which was not just boilerplate, but a virtual copy of a brief for another case – including a boilerplate accusation of misconduct against appellants‘ counsel and a boilerplate request for sanctions based on a purportedly ―frivolous appeal – will not be countenanced. Donahue‘s response to this court‘s notice, informing him that we were contemplating the imposition of sanctions on our own motion, was both truculent and dismissive, going so far as to assert that we must have issued the notice in error. We did not. Nor did we appreciate him responding to our order that he appear to address possible sanctions against him by sending in his stead an attorney who had not been informed sanctions were being considered, and knew nothing about our order. Donahue‘s conduct on appeal was inappropriate in nearly every respect, and we hereby sanction him in the amount of $10,000.

When I became an attorney a good friend of mine expressed concern because his experiences with his attorney were less than positive.  From my friend’s perspective he paid a significant amount of money and the attorney merely used boilerplate forms and “plugged in the names.”  I cannot comment on that attorneys’ practices, but my friend’s perspective played a significant role in how I approach cases.

Deciding how to proceed in a case begins with the initial meeting with the client.  I draw on my past experience and knowledge to educate my clients regarding different approaches and likely outcomes.  I then work with my client to execute a plan of action intended to meet my client’s goals.  While I certainly use past experience and work product to further my client’s interests, it is not enough to simply change the names and submit a document to the courts without ensuring the documents are accurate, appropriate to the situation and drafted to meet the intended outcome.  Unfortunately not all lawyers are alike.

I heard a joke recently that 99% percent of the attorneys out there ruin the public image of the remaining 1% of us hard-working folk.  I’ve been lucky enough to surround myself with colleagues and co-workers that I respect and who consistently hold themselves to a higher standard.  I never want to have an opinion written about my work product that even implies I gave less than 100% of my attention.  Taking the time to do things correctly may not be the cheapest way to approach a situation, but it’s the only way I feel comfortable doing business.

The Law Office of Phillip J. Griego
95 South Market Street, Suite 520
San Jose, CA 95113
Tel. 408-293-6341
Original article by Robert E. Nuddleman, former associate of The Law Office of Phillip J. Griego.
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