Strategizing the Statement of Decision

You just finished a bench trial. The judge directs the winner to draft a Statement of Decision. If you won, how do you draft it? If you lost, how do you oppose it? If no appeal is contemplated, neither question matters much. But if there’s an appeal, it matters a lot.

Let's start with the winner. How do you draft a Statement of Decision?

Follow the law, of course. CCP §632 requires, on request, “a statement of decision explaining the factual and legal basis for its decision as to each of the principal controverted issues at trial.” See also Federal Rule of Civil Procedure §52(a), which requires Findings of Fact sufficient to give the reviewing court a clear understanding of the factual basis for the decision. Federal Civil Trials and Evidence §17:131 (Rutter Group).

But there are many ways you could satisfy this requirement. You could make it long or short, or formal or informal.

So think strategically. Ask yourself why you are doing this. You already won, and you will get a judgment in your favor no matter how you write the Statement of Decision. So why bother taking any care preparing it? Here's why: if your opponent appeals, the appellate court will look to the Statement of Decision to find out what facts the trial court found and what law led those findings to the judgment. The issue on appeal will be whether that Statement of Decision was erroneous.

So to protect yourself from reversal, put some time and thought into drafting the proposed Statement of Decision to have the best effect on the only audience that now matters: the appellate court.

First, make sure that the Statement is adequate to avoid reversal for a legally insufficient Statement of Decision – one that fails to (as CCP §632 puts it) explain "the factual and legal basis for its decision as to each of the principal controverted issues at trial.” The appellate court occasionally reverses where the Statement is too skimpy, wholly omitting discussion of a material issue. See 7 Witkin, California Procedure, Trial, §§401-402. Don’t make that mistake.

That part is pretty easy. The next part requires more strategic thinking. Use the Statement of Decision to make the trial judge your ally on appeal. In the appellate court, the appellant (your opponent) gets to go first. He writes the Appellant’s Opening Brief, which gives the Court its first impression of the case. (You get to file only the second brief – the Respondent’s Brief – and then the appellant may file a Reply Brief.) But what if, after reading the first few pages of the Appellant’s Opening Brief, a Justice realizes that the record includes a Statement of Decision? The Justice might well put down the brief and go find the Statement of Decision. After all, whose view of the case would the Justice rather see first – an advocate slanting things to push his agenda, or a neutral colleague from another court?

So the Statement of Decision – signed by the trial judge, not by you – might be the most important “brief” of all. Therefore, write it like an opening brief - sort of. It should be shorter and less argumentative than a typical brief, but it should be clear and persuasive. This means it should begin by explaining – from scratch – what the case is about. You, your opponent, and trial judge don’t need this basic information, because you all have been immersed in this case for months or years, through pre-trial, trial, and post trial motions. But when the appellate justice begins work on the appeal, she knows nothing about the case. I do a lot of consulting on appeals, and I’ve seen way too many briefs and statements of decisions that assume that the reader knows what happened, or what the industry at issue is about, or what various technical terms mean. These leave the Justices scratching their heads and looking around for some document that tells them in plain English what the hell happened. You want that document to be one drafted by you, not by your opponent.

Look up the "standard of review" on appeal, and think of ways to frame the Statement of Decision to force your opponent to meet one of the more difficult standards of review. Issues of law are reviewed de novo, while issues of fact are reviewed under the “substantial evidence” rule – which is very deferential to the trial court and rarely results in reversal. So on disputed issues, have the trial judge make findings of fact rather than (or in addition to) rulings on contested legal issues. This could force your opponent into the “substantial evidence” standard of review, where it is really tough to get a reversal.

And here’s my favorite: when I'm asked to help draft a Statement of Decision, I try to include a finding that our opponent’s client lied on the witness stand. I don’t say “lied”, I say “did not present credible testimony.” That pretty much demolishes any appellate argument based on the evidence – before any appellate brief is filed! And appellate justices don't like perjurers. Of course, it’s up to the trial judge to decide whether to buy that finding, but quite often she will, because she knows we are trying to help her avoid the embarrassment of a reversal.

What about the loser? Rule of Court 3.1590(f) allows the losing party to file objections to the proposed Statement of Decision. Most losers take this opportunity to launch a full-scale attack on every part of the proposal. Big mistake. You seldom get very far by rearguing what you already argued at trial and lost. If the judge’s tentative decision finds that she believed the other guy’s evidence and not yours, it’s usually too late to talk her out if it. If her tentative rejects your legal reasoning and adopts your opponent’s, you have little chance of changing her mind now.

But elaborate objections can hurt you more than simply wasting time and paper. They can weaken your chance of winning the appeal! If you point out errors in fact, in law, or in reasoning, you are simply giving your opponent and the judge a chance to fix them in the final Statement of Decision – thereby depriving you of the chance to make these points in the appellate court! In fact, your duty to object is quite limited. Most cases hold that you waive nothing by failing to file any objections. Only a handful of reported cases found a waiver – where the loser failed to tell the trial court that the proposed statement of decision said nothing about a disputed material issue. See 7 Witkin, California Procedure, Trial, §404.

Back to the winner. When the loser does file elaborate objections, most attorneys instinctively want to fight every objection. Swallow that instinct. Instead, revise the proposed statement of decision to satisfy every objection you can without giving away the store. This will block the loser from making those same arguments on appeal.

Strategic thinking. That's what wins cases - and appeals.

by M.A.T. Legal Director Myron Moskovitz