Transcript How to Make Your Juvenile Case “Appeal Proof”

Deciding to Appeal
Counseling Your Client
Martha Pierce
Juvenile Law Section
June 16, 2011
Rules of Prof. Conduct, Rule 2.1
ADVISOR

In representing a client, a lawyer shall
exercise independent professional
judgment and render candid advice. In
rendering advice, a lawyer may refer not
only to law but to other considerations
such as moral, economic, social and
political factors that may be relevant to
the client's situation.
◦ UT R RPC Rule 2.1
Comments


Scope of Advice
[1] A client is entitled to straightforward advice
expressing the lawyer's honest assessment. Legal
advice often involves unpleasant facts and
alternatives that a client may be disinclined to
confront. In presenting advice, a lawyer endeavors to
sustain the client's morale and may put advice in as
acceptable a form as honesty permits. However, a
lawyer should not be deterred from giving candid
advice by the prospect that the advice will be
unpalatable to the client.
◦ UT R RPC Rule 2.1

[2] Advice couched in narrow legal terms may be
of little value to a client, especially where practical
considerations, such as cost or effects on other
people, are predominant. Purely technical legal
advice, therefore, can sometimes be inadequate. It
is proper for a lawyer to refer to relevant
moral and ethical considerations in giving
advice. Although a lawyer is not a moral advisor
as such, moral and ethical considerations
impinge upon most legal questions and may
decisively influence how the law will be applied.

[3] A client may expressly or impliedly ask
the lawyer for purely technical advice. When
such a request is made by a client
experienced in legal matters, the lawyer may
accept it at face value. When such a request
is made by a client inexperienced in legal
matters, however, the lawyer's responsibility
as advisor may include indicating that more
may be involved than strictly legal
considerations.

[4] Matters that go beyond strictly legal questions
may also be in the domain of another profession.
Family matters can involve problems within the
professional competence of psychiatry, clinical
psychology or social work; business matters can
involve problems within the competence of the
accounting profession or of financial specialists.
Where consultation with a professional in another
field is itself something a competent lawyer would
recommend, the lawyer should make such a
recommendation. At the same time, a lawyer's
advice at its best often consists of
recommending a course of action in the face
of conflicting recommendations of experts.
Offering Advice
 [5] In general, a lawyer is not expected to give advice until
asked by the client. However, when a lawyer knows that a
client proposes a course of action that is likely to result in
substantial adverse legal consequences to the client, the
lawyer's duty to the client under Rule 1.4 may require that
the lawyer offer advice if the client's course of action is
related to the representation. Similarly, when a matter is
likely to involve litigation, it may be necessary under Rule 1.4
to inform the client of forms of dispute resolution that
might constitute reasonable alternatives to litigation.
A lawyer ordinarily has no duty to initiate investigation of a
client's affairs or to give advice that the client has indicated is
unwanted, but a lawyer may initiate advice to a client when
doing so appears to be in the client's interest.

Reasons Not to Appeal
1.
To prove client loves child, fought for
child.
To prove love . . . show you fought . .

.
ETHICAL
CONSIDERATIONS:

Candid advice. . . . Honest assessment . . .
Unpalatable . . . Moral, social considerations .
. . Recommending a course of action . . .
Initiating advice . . . More may be involved
that strictly legal considerations . . . Effects
on other people.
◦ UT R RPC Rule 2.1
Prove love . . . Show you fought
◦ Love and bonding is not a basis for appeal.
 In re B.R., 2007 UT 82, ¶ 15; 171 P.2d 435.
An appeal may not be the best way
to show love and valor.

E.g.,
◦ The worker found the house dirty and
cluttered. The floor was covered with food
and soiled diapers. Dirty dishes, with aged,
crusted food, were piled in the kitchen. The
workers reported the children, especially the
baby, were so thin they appeared
malnourished.
 In re S.T., 928 P.2d 393, 395 (Utah Ct. App. 1996)
Reasons Not to Appeal
2.
Your client feels that the court should
have placed the children with a relative.

Independent professional judgment and
render candid advice.
Relative placement not a factor in
termination decision.

◦
In re W.P.O., 2004 UT App 451, ¶ 11; 104 P.3d
662.
Reasons Not to Appeal
3.
Your client thought the judge was unfair,
biased, prejudiced, or did not like
him/her.

Render candid advice.

Relevant moral and ethical
considerations.

Judges are presumed to be qualified, can’t infer
bias from random comments, adverse rulings.

In re M.L., 965 P.2d 551, 556 (Utah Ct. App. 1998)
Reasons Not to Appeal
4.
The court did not believe your client or
your witnesses and did not say why.

Relevant moral and ethical
considerations

Judge gets to determine credibility,
doesn’t have to say why.

In re S.T., 928 P.2d 393, 399 (Utah Ct. App. 1996).
Reasons Not to Appeal
You disagree with the outcome.
5.
◦
The judge has the right to be wrong when:
Making credibility judgments.


In re S.T., 928 P.2d 393 (Utah Ct. App. 1996).
Weighing the evidence.


In re B.R., 2007 UT 82, ¶ 14; 171 P.2d 435.
Making inferences.


Appellate court defers to juvenile court “with respect to
the witnesses in assessing credibility and personalities.”In
re S.Y., 2003 UT App. 66, ¶ 11; 66 P.3d 601.

Continued from previous slide

The judge has the right to be wrong when:
◦ Adding up the facts
 In re B.R., 2007 UT 82, ¶ 14; 171 P.2d 435.
◦ You go along with it (invited error)
 Mother could not claim that the court erred in relying on
evidence from shelter hearing when her counsel invited the
juvenile court to consider such evidence. In re C.I., 2009 UT
App. 141.

The judge has to be more than wrong and
the error must be a legal one and big
enough to affect the outcome.
Utah R. Evid. (1)

(a) Effect of erroneous ruling. “Error may not be
predicated upon a ruling which admits or excludes evidence
unless a substantial right of the party is affected, and
◦
◦
(1) Objection. In case the ruling is one admitting evidence, a
timely objection or motion to strike appears of record, stating
the specific ground of objection, if the specific ground was not
apparent from the context; or
(2) Offer of Proof. In case the ruling is one excluding evidence,
the substance of the evidence was made known to the court
by offer or was apparent from the context within which
questions were asked. Once the court makes a definitive ruling
on the record admitting or excluding evidence, either at or
before trial, a party need not renew an objection or offer of
proof to preserve a claim of error for appeal.”
Generally, the most you can
hope for is a second trial . . .
before the same judge. . .
Do you really want to put your
client or your child through
that?

More may be involved than strictly legal
considerations.

May consider effects on other people.

Relevant moral and ethical considerations.

Independent, professional, candid advice.

Rule 2.1
If you must appeal . . .

Counsel your client.

Preserve your claim.

Make a record.

Consider asking for a stay.
PRESERVING YOUR CLAIM

If you didn’t object, didn’t make an
argument and didn’t ask for a ruling…

The law says you’re ok with it.
PRESERVING YOUR CLAIM

(a) Effect of erroneous ruling. Error may not be predicated upon a
ruling which admits or excludes evidence unless a substantial right of the
party is affected, and
◦ (1) Objection. In case the ruling is one admitting evidence, a timely objection or motion
to strike appears of record, stating the specific ground of objection, if the specific
ground was not apparent from the context; or
◦ (2) Offer of Proof. In case the ruling is one excluding evidence, the substance of the
evidence was made known to the court by offer or was apparent from the context
within which questions were asked. Once the court makes a definitive ruling on the
record admitting or excluding evidence, either at or before trial, a party need not
renew an objection or offer of proof to preserve a claim of error for appeal.

(d) Plain error. Nothing in this rule precludes taking notice of plain
errors affecting substantial rights although they were not brought to the
attention of the court.

Utah R. Evid. 103
You have waived an issue when. . .

You failed to object on the record, state
authority and ask for a ruling.
◦ In re E.R., 2001 UT App. 66, ¶ 9; 21 P.3d 680;
Utah R. Evid. 103(a)(1).

You did not proffer what the evidence
would have shown.
◦ Utah R. Evid. 103(a)(2)
You have waived an issue when. . .

When the error took place off the record
and you did not put it on the record.

You fail to make sure the exhibit is in the
trial record.

The findings are inadequate, but you did not
object to them.
◦ In re K.F., 2009 UT 4, ¶ 64; 201 P.3d 985.
You have waived an issue when. . .

You failed to obtain a transcript or to
make sure the record is transmitted.
◦ In re H.H., 2011 UT App. 44, ¶ 3; 248 P.3d
1036.
◦ Utah R. App. P. 11(e)(2).
But I didn’t get a chance to object!


That was your chance.
Say: “Your Honor…
◦ …I’d like to make a record.”
◦ …I would like an evidentiary hearing.”
◦ …I’d like to leave to brief an issue and to seek a
ruling from this court.”
◦ …I’d like to proffer the evidence on the record.”
◦ …I’d like to state for the record the agreement
we just made at side bar/ in-camera.”
MAKING A RECORD

If it’s not on the record it didn’t happen.
Making a Record
◦ Utah R. App. P. 11(c) – the appellant . . . shall take any
other action necessary to enable the clerk of the trial
court to assemble and transmit the record.
◦ Utah R. App. P. 11(c)(2) – “If the appellant intends to
urge on appeal that a finding or conclusion is
unsupported by or is contrary to the evidence, the
appellant shall include in the record a transcript of all
evidence relevant to such finding or conclusion.
Neither the court nor the appellee is obligated to
correct appellant’s deficiencies in providing the
relevant portions of the transcript.”
CHECK OUT THE RECORD

Make sure the court ended up with the
exhibit.

It’s your job to make sure the record is
complete.

Check the other parent’s file, the sibling’s
file.
An Appeal Does Not Stay the
Proceedings

Ask first at the trial level, then at the
appellate level.
 Utah R. Civ. P. 62; Utah R. App. P. 8.
The Jensen v. Schwendiman factors:
◦ (a) the applicant makes a strong showing that
he is likely to succeed on the merits of the
appeal;
◦ (b) the applicant establishes that unless a stay
is granted he will suffer irreparable injury;
◦ (c) no substantial harm will come to the other
interested parties, and
◦ (d) a stay would do no harm to the public
interest.
 744 P.2d 1026, 1027 (Utah Ct. App. 1987).
If you want to change the law…

Bad facts make bad law:

Write your brief first and wait for the
right set of facts.
THE DECK IS STACKED
(the presumption of regularity).

¶ 21 . . . Losing in court comes with
consequences. . . . An appellant must do
the heavy lifting because the law
otherwise presumes that all was well
below.
◦ State v. Robison, 2006 UT 65, 147 P.3d 448, 452 (citations
omitted).