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Walsh v. Arizona Cardiac Specialists (4/13/12)

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We blogged the Court of Appeals’ opinion here; go there for the facts. The Supreme Court vacates that opinion but agrees that a zero award in a wrongful-death case is proper. Since wrongful death is not a common-law claim the common-law rule does not apply; the CA2 cases to the contrary are overruled.

Apparently the children acknowledged that in principle but argued that the jury had ignored uncontradicted  evidence of their loving relationship with the deceased. But a jury has great discretion in wrongful death cases and could have discredited the children’s testimony because, for example, of their self-interest. The court also says, though, that “the jury might have accepted the children’s testimony about their loss, but nonetheless decided, given all the circumstances, that awarding no damages was “fair and just.” It seems that the jury’s discretion in wrongful death is just about unlimited.

[LATER EDIT 4/15/12] We’ve been asked about an issue in the CA1 opinion that we didn’t mention here and have realized that we should have.

Specialists argued that Walsh waived the issue by not raising it when the jury returned the verdict. The Court of Appeals said that was “moot” and addressed the substance, which we said “puts the cart before the horse.” The Supreme Court, in a footnote, says that the lower court’s mootness comment was correct. So, who’s right?

Though “moot” is not quite the right word, it is logically true that if a zero verdict is not defective then it need not be treated as such (i.e., Walsh didn’t waive anything by not raising the issue at the time). But our comment intended to refer to a matter not of legal logic but of jurisprudence – the question, addressed later in our Court of Appeals blog, of CA1’s approach to the CA2 precedent. The Supreme Court’s approach is understandable but the same can’t be said of CA1. As we blogged, that court “reaches the issue because it wants to,” not because it should have.

This is especially true since our appellate courts have nowadays made a point of referring to Division Two opinions as merely being those of “another panel” of the Court of Appeals (e.g, here and here; if you think these random, meaningless occurrences then please remember not to buy bridges in Brooklyn or answer Nigerian emails). The fact that there even are two divisions, in other words, is a secondary thing we should ignore. But the Court of Appeals in Walsh blithely threw over two decisions from two panels – four different judges – twenty years apart. We’re shown that some panels are nevertheless more equal than others and that decisions from some aren’t really “real” – no matter how many nor how old they are –  until they’re confirmed by another. That isn’t a legal system – its legal chaos. It would even be better to admit officially – if its true – that CA2 is considered the minor leagues and counts only until someone in the Valley makes the call. That would at least give us some guidance in trying to tell our clients what the law is.

The Court of Appeals already knows how to handle this problem correctly: Follow the precedent but signal that you do so by obligation rather than agreement. And the Supreme Court is not blameless, since it has made the problem worse by not mentioning it in this opinion.

(link to opinion)

Hall v. Read Development (CA1 4/12/12)

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This case holds incidentally that a subsequent house purchaser can’t rescind but its real interest concerns how to factor in attorneys fees in deciding who is the successful party under 12-341.01.

Hall was unhappy with her house and sued its builder, Read. The jury awarded her $30,000. This was less than Read had offered in settlement and so it argued that under 12-341.01A Hall was not the “successful party” for purposes of awarding fees. But the trial court awarded fees anyway, on the theory that the amount Hall’s fee request (about $300,000) exceeded Read’s offer. Read appealed.

The statute says that the offeror is the successful party if the “judgment finally obtained” is less than the offer. Since the “judgment finally obtained” can include fees the question becomes whether the amount of the fees to be included should be considered in deciding whether they should be included. The Court of Appeals says “yes,” and affirms. It says that “judgment finally obtained” is clear language. Then, in backhanded acknowledgment that context just might have something to do with it, the court says that, anyway, the statute doesn’t specifically prohibit choosing the successful party the same way – or in some sort of overlapping way – in a case where there’s been a settlement offer as in a case where there hasn’t. The court also says that it is “harmonizing” the statute with Rule 68, which makes specific provision for the fee question. “Harmonizing” a statute with a rule – even if the two said roughly the same thing – raises interesting constitutional questions that, if they occurred to the court, are deftly hidden.

We may be having an off day; we’ve read the twenty pages the court takes to reach this conclusion more than once and still can’t figure out how a law that the person who wins gets fees can logically mean, or was intended to mean, that the person who gets fees wins.

(link to opinion)

In the Matter of Thomas, et al. (Presiding Disciplinary Judge)

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This is not an appellate opinion but we’re moved to comment because so many people are already talking about its style.

There was a time when trial judges knew and enforced the forms and conventions of findings and conclusions. Those days are long past. Calling a finding a conclusion, or vice versa, could earn you a mild rebuke from a good judge; nowadays it is so routine that often, as here, there is no attempt at distinction.

Also routine is the inclusion of random thoughts, observations, and other pearls of wisdom that aren’t either one but that the writer just can’t leave out. The PDJ’s excuse is presumably that Rule 58 calls for a “report” that “includes” findings and conclusions, so his office can throw in whatever else it pleases.

But should it?

This opinion is the problem in its most acute form. The thought that extraordinary subjects demand extraordinary responses, even to the extent of drawing upon the divine and the classics, is hardly unique:

I thence invoke thy aid to my advent’rous Song, that with no middle flight intends to soar . . . while it pursues Things unattempted yet in Prose or Rhyme . . .

What in me is dark illumine, what is low raise and support; that to the height of this great Argument I may assert Eternal Providence, and justify the ways of God to men.

The problem with enlisting the Almighty is that He (or She, or Whatever) is – for reasons that do not entirely passeth the understanding – more likely to respond to Milton than to your local lawyer/judge/bureaucrat. Heroic efforts that fall flat may deserve to be praised but are instead laughed at, as is happening to this opinion.

And that’s a bad thing, for more than one reason.

First, the laughing is not only at individuals but also at the institution – the PDJ’s office and, by extension, the Court. Yet the point of the thing – of throwing out the old scheme and replacing it with the PDJ apparatus imported from Colorado – was to strengthen faith in and respect for our policing system.

Second, and worse, a thing like this can produce not only laughter but suspicion. A legal tribunal is supposed to be above the fray, to be impartial no matter how contentious the issue. Writing a dark-and-stormy-night melodrama – complete with heroes, villains, faux-Greek tragedy, and elaborate moral judgments – signals the opposite. It suggests a tribunal joyously leading the charge for what it obviously considers the emotionally satisfying result. PDJ panels can talk about their “sui generis” mission all they like but sui generis partiality is still partiality. We do not suggest that these gentlemen lacked impartiality. But their form of expression does their case, and their office, and our profession, no good at all.

(link to opinion)

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