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Lawyer “immortalized in the California Appellate Reports” for incivility

Tim Kowal     May 9, 2024

"Lawyers and judges of our generation,” says the Court of Appeal, “spend a great deal of time lamenting the loss of a golden age when lawyers treated each other with respect and courtesy.” But that golden age, judging from the opinion in Masimo Corp. v. The Vanderpool Law Firm, Inc., (D4d3 May 2, 2024 No. G061829) [cert. for pub.], has not arrived.

The appeal arose after the appellant law firm was hit with $10,000 in discovery sanctions. But the firm argued that, by that time, it had been substituted out of the case, so it could not be sanctioned. That was not a good argument because, as the discovery referee reasoned, the attorney had “put all of these events into motion” before exiting the case, so the notion that subbing out should give the attorney “a ‘free pass’ to escape that responsibility defies logic.” The Court of Appeal agreed.

But what is noteworthy is the court’s soliloquy on civility. Sometimes when an attorney commits an indiscretion, the court refrains from naming names. Not here. The court explicitly “called out” attorney Douglas Vanderpool for writing nasty meet-and-confer emails. One email bore the subject “You are joking right?’ and, having uncorked the vitriol, poured liberally: “In 30 years of practice this may be the stupidest thing I've ever seen. Robert is this really why you went to law school? Quit sending us paper. you know we are out of the case so just knock it off and get a life.”

The court lamented that, while it has been issuing decision after decision holding forth on the benefits of civility and the steep costs of incivility, “[e]vidently [Vanderpool] did not get the memo.” The court summed up those admonitions this way: “Civility is not about etiquette. This is not a matter of bad manners. Incivility slows things down, it costs people money – money they were counting on their lawyers to help them save. And it contravenes the Legislature's directive that "all parties shall cooperate in bringing the action to trial[.]" (Code Civ. Proc., § 583.130.)”

In prior decisions, the court has hit uncivil attorneys in the pocketbook via sanctions and reduced attorneys’ fee awards. If that is not enough, the court will add shame into the bargain: “Incivility is the adult equivalent of schoolyard bullying and we will not keep looking the other way when attorneys practice like this. They will be called out and immortalized in the California Appellate Reports.”

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
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