An appeal based on evidentiary rulings is generally a loser. But not always.

Pipher sued his dentist for malpractice. The trial court excluded portions of his causation expert’s testimony and allowed in portions of the defendant’s expert’s that he objected to. He lost, then appealed the evidentiary rulings.

As to the defendant’s expert, the appellate court agreed with the trial court: the expert’s testimony could not be excluded on hearsay grounds merely because it was based in part on patient surveys.

As to the plaintiff’s expert, the defense had objected to portions of his testimony that referred to the standard of care; its argument was that another plaintiff’s expert had opined on the standard of care and only one standard-of-care expert is allowed. One portion seems, from the brief passage quoted in the opinion, to have mentioned the standard of care only in passing but the court concluded that its exclusion was not error.

The other portion was this:

Q: Do you have an opinion whether there would
have been permanent injury to Dr. Pipher’s
lingual nerve if the dentist administering the
anesthetic had followed the Arizona standard
of care as expressed?
. . . .
A: Yes, I do have an opinion.
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Q: And what is your opinion?
. . . .
A: Yes. My opinion would be that – if the
standard of care had been followed, that the –
the precautions taken after it – it was numb,
that they had come in contact with – or he had
come in contact with the nerve, that there
would not have been severe damage to the
nerve, which did take place. And so the
standard of care was not met and this is what
resulted in the severe injury to – to this
nerve – to the lingual nerve on the right-hand
side.
. . . .
Q: So if you’re going slowly, does that allow you
to touch the lingual nerve, cause the electric
shock and get out without damage?
. . . .
A: Yes.

If that testimony wasn’t intended to slip a standard-of-care opinion through, we’ll eat the transcript. But the court decided that the testimony should have been admitted because the expert had mentioned the standard “only as a predicate” to his causation opinion.

Well, maybe. Why does “only as a predicate” make an inadmissible opinion admissible? It can only be because, in the context of the rest of the testimony, the jury would understand that the witness was assuming the other testimony as the basis of his own rather than reaffirming it. That sort of call, though, is for the trial judge and  is to be respected absent an abuse of discretion. The opinion is weak on explaining why a disagreement about the tenor of the evidence rose to the level of abuse of discretion. The only clue the court gives is to mention that the quoted passage was the only opinion the causation expert gave about causation. Some testimony, apparently, is more equal than other testimony; the rules will be relaxed for the really important stuff.

The defense argued that the quoted testimony was also  inadmissible because it was without foundation, was speculative, and lacked an adequate basis under Rules 702 and 703. The appellate court disagreed. The disagreement was probably correct but the broad discretion to be given the trial court in such matters was, once again, not mentioned.

Normally, one of the few things more boring than a condemnation trial is a condemnation appeal. But this one addresses an issue of importance; it presents a simple, basic analysis of what to do when a statute and a court rule conflict.

The City condemned Johnson’s property for its light rail system. The jury awarded her more than the City wanted to pay; the City moved – unsuccessfully – for a remittitur or new trial, then paid the money into court (which you can do in a condemnation case) and appealed.

A statute provides that the defendant/condemnee can demand receipt of the money paid into court; Johnson did so. Rule 62(g) says that appeal stays money judgments against political entities, so the City argued that Johnson couldn’t get the money despite the statute. The trial court ordered the funds released, so the City added that ruling to its appeal.

The appellate court first recognized that the statute and the rule are irreconcilable – one has to trump the other.

Which prevails is an issue of substance versus procedure. The legislature has the right to make substantive law. The Supreme Court has the right to make procedural rules. On substantive matters, statutes prevail; on procedural matters, the rules prevail.

So is paying Ms. Johnson procedural or substantive? The court decided that it was substantive. The legislature created a substantive right to the money that the rules cannot hinder or delay.

The court came to this conclusion despite feeling that there was an “element of unfairness” to it that “jumps off the page.” Our view is that that element barely crawls, much less jumps. The stay pending appeal is, after all, a special privilege that the government has created for itself; the rest of us have to buy supersedeas bonds. And the right to possession of the money balances a little bit the government’s right to immediate possession of the property; Phoenix had long since taken Johnson’s land. The court worried that a defendant might spend the money and not be able to pay any back if the government won an appeal. But that is a risk for the defendant as well for the government; any sane defendant will save enough to pay some back if necessary. It really doesn’t seem likely that Ms. Johnson will spend all her $1,046,650 in one place.

This is a case about judgments and charging liens, and why there was one of the former but none of the latter.

Langerman represented a plaintiff in suing GlenEagles. The jury awarded the plaintiff $100,000 but that was less than the defendant’s Offer of Judgment. The court awarded GlenEagles over $150,000 in Rule 68 sanctions, which was about $30,000 more than the plaintiff’s award plus costs. The trial judge signed a form of judgment in the plaintiff’s favor for the jury award and for costs and in the defendant’s favor for the sanctions.

The plaintiff then filed bankruptcy. She and GlenEagles  worked out a settlement of their respective claims by which GlenEagles would get an unsecured claim for the $30,000.

The bankruptcy judge was about to sign it when Langerman filed this action. The trial court dismissed the case. The Court of Appeals affirmed.

Langerman claimed a charging lien against the awards to the plaintiff. The court held that although there were three awards, there was for lien purposes one judgment, by which the plaintiff ended up owing money to GlenEagles. The common-law charging lien exists, the court pointed out, to ensure that the lawyer will be paid out of the fund generated by his or her efforts. Since Langerman’s efforts resulted in no fund, it had no lien.

We do not know what advice lawyer gave to client about accepting the Offer of Judgment;  it may not have been the lawyer’s fault that the client ended up bankrupt despite winning a six-figure award (though interfering with the client’s bankruptcy settlement for the lawyer’s gain does seem a bit much.) But the court pointed out, by citing a case from Nevada, that there would be no lien even if the lawyer had advised her to accept it. You can’t file a lien on a loss.