We follow the criminal cases, albeit loosely, because, as one of our former Chief Justices liked to point out, they make a lot of evidentiary law. This one involves the use of experts.

The defendant was an alleged child molester. The prosecution wanted to put on an expert to testify about a purported syndrome suffered by molestation victims that explains why (as here) their reports of abuse can be tardy and inconsistent. She knew nothing about these particular victims and would express no opinions about the case. The defense made a Daubert objection under our new version of Rule 702. The trial court admitted the testimony; the jury convicted; the Court of Appeals affirmed. The Supreme Court took review and now affirms, meaning that it wasn’t happy with CA2’s opinion.

The defense pointed out that the expert’s testimony was “cold” – i.e., simply explained a subject without reference to the facts of the case. (For some reason the opinion puts quotation marks around “cold” throughout, even after explaining its meaning; we like to think the author knows that usage does not strictly require or permit the subsequent marks and uses them to signal disdain for a cant term.) Rule 702(d) states that an expert can testify who “has reliably applied the principles and methods to the facts of the case.” The defense argued that since this witness hadn’t she couldn’t qualify. After discussing the history and development of Rule 702 the court concludes that it did nothing to prohibit cold testimony if that the witness otherwise qualifies as an expert. The court agrees with the State that 702(d) means that the expert must apply the principles reliably if he or she applies them at all.

The defense also argued, in essence, that the syndrome wasn’t scientifically recognized or accepted, citing cases from elsewhere that have questioned it. But the defense didn’t submit any data, studies or expert testimony to question the syndrome. (An amicus did on appeal but the court says that’s too late). And our courts have accepted such testimony in earlier cases (in fact prosecutors routinely call this expert to give this sort of testimony in this sort of case). There was also no request for a hearing under Rule 104 so that the defense could make a record on the issue. (The lesson is of course that you can’t do one of these challenges the cheap and easy way, just with legal argument.)

The court vacates most of CA2’s opinion, though, and de-publishes the remainder of it.

(link to opinion)

The rule has long been that if you represent yourself you can’t get a fee award. This case holds that the rule applies to law firms.

Munger Chadwick, a Tucson firm represented by its own members, sued Farwest and won; it then moved for and was granted fees. This opinion reverses the award.

The court first addresses a jurisdictional argument. It had no choice but we do; the argument was too useless and silly to bother with.

Substantively, Munger argued that a PLC can’t represent itself, relying on Hunt (1987), which suggested that only a natural person could represent himself and therefore, by Munger’s logic, that an entity can’t, isn’t, and should thus get fees. This court explains that the lesson of Hunt (which let a lawyer-partner get fees for representing the partnership) is that  “a partnership, or a corporation, may not be represented by someone who is not.authorized to practice law.“ The court says that if the Munger firm couldn’t represent itself then it couldn’t represent anyone else, either. “But that conclusion would be contrary to the common practice of clients hiring law firms for legal representation.” A Supreme Court rule implies that an “entity” can be engaged in the practice of law. And the Restatement of the Law Governing Lawyers says that it’s the law firm that represents the client. (Well, maybe, though the concept that the firm rather than the lawyer is doing the representing, and the wording of the signature lines of pleadings, etc., to reflect this, is more the result of law-firm marketing and P.R. than of of inherent legal theory. Restatement drafters are the last people who would know such things.). “We . . . find no logical reason to draw any distinction between a law firm that represents itself and a sole practitioner that [sic] does so.” And it would be unfair to allow a firm to get fees in a situation where an individual lawyer or a pro se couldn’t.

Early in the opinion, however, the court, in a long footnote, does us the honor of suggesting its own theory. It tells us that Munger did not make this argument; Farwest surely didn’t, either, which means that no party did and that it is included as a lagniappe for we dimwits who still practice law. We’re grateful when courts do this;  the deep wisdom and long professional experience of the people who write these things surely puts them in a position to expound their views on issues unbriefed, and which they may have barely heard of before, but on which they’ve recently spent a bit of time reading a few cases. In any event, the court points out that some jurisdictions don’t apply the no-fee-if-you-represent-yourself rule to lawyers. But our Supreme Court has said that “one who acts only for himself in legal matters . . . is not practicing law.” Though that “doesn’t’ squarely address” the issue, “to the extent” that it does indeed do so CA1 is bound to accept it. The opinion doesn’t mention that the principle has been cited in cases other than the Supreme Court case it cites from 1942 (which the author of the opinion may consider the dark days before the invention of the wheel) though in fact it has been, including the Hunt case (where the court presumably found it). Hunt, rather than go out of its way to question the idea, called it “undisputed in Arizona.” The evident purpose of the footnote is that it not remain so despite the failure of these lawyers to dispute it.

(link to opinion)

The court here makes an arguably rather subtle distinction rather than allow a party to play “gotcha” with the attorney-client privilege.

DOS Land Holdings sued Empire for breach of contract because Empire, a title company, allegedly fouled up the legal description of a property by leaving out an easement. The Complaint alleged (for reasons unexplained, its counsel essentially admitting that the language was surplusage) that DOS “reasonably believed” that the closing documents included the easement. Empire seized on this language, arguing that it must refer to or rely on the advice of counsel and that DOS had thereby waived the privilege. The trial court denied Empire’s motion to discover DOS’s communications with counsel but the Court of Appeals accepted special action and, in an unpublished opinion, allowed the discovery. The Supreme Court accepted review; this opinion overturns the Court of Appeals.

Empire relied on State Farm v. Lee (2000), in which the court held that State Farm waived the privilege by alleging, in defending a bad-faith case, that its employees reasonably believed that its interpretation of a policy provision was correct. The point of this opinion is to explain why State Farm’s reasonable belief is different from DOS’s reasonable belief. “[M]erely alleging the reasonableness of one’s beliefs does not, in itself, waive the privilege; rather, the litigant must advance a subjective evaluation or understanding that incorporates the advice of counsel.” DOS’s reasonable belief was not an essential element of its cause of action, the breach-of-contract claim does not rely on its mental state or subjective knowledge. Mentioning  reasonable belief in the Complaint did not “interject” advice of counsel into the case; “[w]e will not find a waiver based merely on imprecise or superfluous pleading.” As to State Farm, the court seems to feel that it was using its employee’s beliefs as a sword  while trying to use the privilege as a shield against discovery of what they actually knew, whereas this is a simple contract case in which Empire either did or didn’t do what it was supposed to do.

Whether the distinction works we leave the the reader. The opinion itself is reasonably well done; it opens well and is (by modern standards) brief.

(link to opinion)