Citing Rule 60(c)(6) is normally an act of desperation. But here a litigant not only won the motion, it did so without even making it.

Minjares was hurt in a a car accident in Kingman. She sued the other driver and also sued Kingman, Mohave County, and the State on road-design issues. The County escaped by dismissal before trial, Kingman by JMOL at trial; the jury awarded just over three million dollars and found the State 33% at fault. Judgment was entered accordingly, plus post-judgment interest at 10%

The State appealed the Kingman JMOL; it lost. It then filed a motion in the trial court under 60(a) and 60(b)(2) asking it to “correct” the judgment to state a different interest rate for appeal, pursuant to 41-622f: “Interest on any judgment against this state  . . .  shall accrue at the average yield offered by United States treasury bills during the course of the appeal.”  The court granted the motion.

Minjares appealed, arguing that res judicata barred relief, that the State had waived the issue, and that Rule 60 does not permit amending a judgment after appeal.

It is not clear from the opinion that anybody in the case, including the Court of Appeals, had a very firm grasp of res judicata or collateral estoppel but the opinion decided that they don’t apply.

As to waiver, the State argued in essence that it couldn’t ask that the judgment reflect a reduced interest rate on appeal until it appealed, by which time it couldn’t ask for it because it hadn’t asked for it in the court below, and anyway, if it won the appeal it might not have had to pay interest in the long run anyway, and on top of that, it couldn’t know how much the “average yield” on T-bills would be. Why it couldn’t or didn’t simply request that the judgment incorporate the statute or statutory language is left tantalizingly unexplained. Division One, although with a comment apparently intending to suggest  that to its eye there was a waiver, ruled that it “cannot say” that the trial court committed “clear error” in finding no waiver.

This was, after all, the trial court’s factual finding,  and so the ruling is perhaps correct even though the State’s arguments were silly. (For some reason the opinion does not – contrary to modern convention – explain at great length the applicable standard of review, nor mention it at all. We applaud this – it shouldn’t be necessary to mention the standard unless it is an issue of dispute in the case.)

Judge Norris dissented on the waiver issue, taking the eminently sensible position that the State could have and should have taken care of the matter before judgment was entered. Had she been the trial judge, we would have had a more reasonable result.

Finally, as to Rule 60, the court ruled that 60(a) and 60(b)(2) didn’t apply since the judgment was correct when entered.  The “omission of a proviso that, if the State appealed, the interest rate would be modified to the average interest of treasury bills during the pendency of the appeal” was not a clerical error nor a mistake about money since the trial court hadn’t intended to include it. (Of course, this admits that the court could have included it and therefore that the State’s waiver arguments were ridiculous.)

But the court then considered Rule 60(c)(6), using one of those rules that the courts use or ignore as they please: an appellate court will affirm a trial court’s ruling if there is any reason why the ruling was correct. The Court of Appeals decided that 60(c)(6) relief was appropriate, citing a case in which a wife was allowed to modify her divorce decree when her ex filed bankruptcy, which she hadn’t expected. Why should that allow the party who did the “unexpected” to amend a judgment to its benefit by incorporating after the fact a statute that it knew about  as a matter of law at the time of the original judgment? Also unexplained. The court concludes that the trial court did not abuse its discretion in granting Rule 60 relief for the wrong reasons.

The last several pages of the opinion are devoted to deciding that the statute means what it more-or-less seems to say, namely, that the T-bill interest rate applies to judgments against the State while they are on appeal.

The other day we said that “Courts and lawyers have trouble counting.” We thought that case interesting because, despite our sarcasm, lawyers surely don’t trip over such basic principles too often. Do they? But here is another one,  this one with a bit of weird lawyering thrown in.

Lychwick was convicted of, basically, violating an injunction against harassment. Having been served with a one-year injunction on January 17, 2006, he waited until January 17, 2007 to harass again. He presumably thought this quite clever until he found out how lawyers count. He raised some hilarious alibis but primarily argued that the injunction had expired. The Court of Appeals pointed out, as we did the other day, that the first day is excluded.  January 17, 2007 was the last day of the injunction, not the first day after it.

The weird thing is that the State had made that argument in the trial court but changed its mind on appeal. It argued to the Court of Appeals that the injunction ran from 11:00 a.m. on 1/17/06 to 11:00 a.m. on 1/17/07. The court gently pointed out that the law measures time “by the calendar, not by the clock,” ignoring fractions of a day.

This is one of those (extremely rare) times when we have to admit ignorance – ignorance, this time, of whatever criminal or obscure-law analogue inspired the “11:00” argument. We have to assume that there is one; otherwise, making that argument about an injunction was just plain, well, weird. This counting stuff just ain’t that complicated.

This special action involves an issue that personal-injury lawyers run into all the time.  The court calls it an issue of first impression, though, and maybe it is. The question is how extensively you can discover into an expert’s life to try to show bias.

Lauren Allo had a UIM claim against AmFam arising out of a motor vehicle accident. It hired a doctor to review her medical records. He decided that many of her problems were pre-existing or unrelated. AmFam apparently denied the UIM claim. Allo sued for bad faith. She subpoenaed the doctor’s reports, correspondence, tax returns, financial statements, etc., for the prior 3-5 years. AmFam objected, though it agreed to produce all files the doctor examined for this case, lists it assumed it kept (as most experts do) of past cases he had worked on, and some other information. The trial court ruled that Allo was entitled the doctors IME reports for five years prior to the accident – which would mean nine year’s worth, the amount of his fees in each of those cases, and the requested financial/tax data.

The Court of Appeals accepted AmFam’s special action, finding that the issue is of statewide importance and is one on which  trial courts have disagreed (which perhaps admits that most judges, unlike this one, craft a ruling that people can just about live with).

The court said that although evidence of an expert’s potential bias is admissible, and although a litigant has a right to develop such evidence, these rights are balanced against the witnesses’ rights to be free from burdensome and intrusive discovery and the court’s right to prevent expensive, time-consuming discovery that serves no useful purpose.

The court first quickly ruled that the nine-year period – which was longer than the subpoena had requested – was too long. There was no support in the record for it. The opinion cites authority from other states approving 3-5 year time frames.

As for the substance of the subpoena, the court said that there is an obligation to try less intrusive forms of discovery first. Some jurisdictions, it says, require that the expert’s deposition be taken first (Allo hadn’t taken it), though the court said that this is not a requirement in Arizona. A subpoena may be used first but it cannot be overbroad. Relevant to this is whether the discovering party is able to obtain bias evidence in some other way; in this case, Allo had information from the Trial Reporter, some of the doctor’s prior depositions, and discovery from another case in which the doctor gave information about his income from IMEs.

The court refused to draw any bright lines regarding what information could and could not be obtained. But it expressly agreed that some courts had gone too far in allowing this sort of discovery when it merely produces more detail about things that simple cross-examination could make plain to a jury.

The court also thought it significant that AmFam and the doctor were basically willing to provide much of this information, though in less-intrusive form. On the other hand, it acknowledged that sometimes your discovery has to be detailed in order to get results.

The bottom line is that this sort of discovery is allowable “only in the most compelling of circumstances, and only after less intrusive means of obtaining bias-related evidence have been explored.”

And now for something completely different. We’ve griped about this before but there’s no reason not to do so again. The first named defendant in this special action, pursuant to the rule, is the judge, “The Honorable Larry Grant.” When the court sends out notice of the case, though, this is reduced to “Hon. Grant.”

What member of the legal profession could possibly believe that that is a graceful or appropriate way to refer to a judge? But the court didn’t, as we recall, used to do that, which means that somewhere, at some point, for some reason, somebody made an actual decision to do it that way. Surely it takes a closeted, clerical bureaucrat to believe that a judge would be offended by seeing only his last name in the caption or that “Hon.” is just a dandy abbreviation. Why is it acceptable to use just last names for everybody except “hons?”

Look, folks, here’s the deal: “the honorable John Doe” is the way to say it, and the only way. It’s not ‘honorable John Doe” or “honorable Doe” or “honorable John.” There is no slightest thing wrong with calling the case “Allo v. Grant.” The only lawyers who don’t know that are the same ones who address a judge on the bench as “judge,” a rude barbarism we used to expect only from pro se parties and criminal defendants.