Kowal Law Group Logo

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.
Get “Not To Be Published,” a weekly digest of these articles, delivered directly to your inbox!

"A judge is a law student who grades his own papers."

— H.L. Mencken

"Upon putting laws into writing, they became even harder to change than before, and a hundred legal fictions rose to reconcile them with reality."

— Will Durant

Show neither partiality to the weak nor deference to the mighty, but judge your fellow men justly.


"God made the angels to show Him splendor, … Man He made to serve Him wittily, in the tangle of his mind."

— Sir Thomas More in Robert Bolt's A Man for All Seasons

"It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else."

— Hon. Sir Owen Dixon, Chief Justice of Australia

"So far as the beginnings of law had theories, the first theory of liability was in terms of a duty to buy off the vengeance of him to whom an injury had been done whether by oneself or by something in one's power. The idea is put strikingly in the Anglo-Saxon legal proverb, 'Buy spear from side or bear it,' that is, buy off the feud or fight it out."

— Roscoe Pound, An Introduction to the Philosophy of Law

"Counsel on the firing line in an actual trial must be prepared for surprises, including requests for amendments of pleading. They cannot ask that a judgment afterwards obtained be set aside merely because their equilibrium was slightly disturbed by an unexpected motion."

Posz v. Burchell (1962) 209 Cal.App.2d 324, 334

"Moot points have to be settled somehow, once they get thrust upon us. If an assertion cannot be proved, then it must be settled some other way, and nearly all of these ways are unfair to somebody."

—T.H. White, The Once and Future King

"Good people do not need laws to tell them to act responsibly, while bad people will find a way around the laws."

— Plato (427-347 B.C.)

“It will be of little avail to the people, that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man, who knows what the law is today, can guess what it will be tomorrow. Law is defined to be a rule of action; but how can that be a rule, which is little known, and less fixed?”

— James Madison, Federalist 62

"At common law, barratry was 'the offense of frequently exciting and stirring up suits and quarrels' (4 Blackstone, Commentaries 134) and was punished as a misdemeanor."

Rubin v. Green (1993) 4 Cal.4th 1187

Copyright © 2024 Kowal Law Group
linkedin facebook pinterest youtube rss twitter instagram facebook-blank rss-blank linkedin-blank pinterest youtube twitter instagram