A trial lawyer brought me in to file a petition for writ of mandate to undo an adverse ruling. Plaintiff (our client) had sued the defendant for an accounting and for partition: to compel sale of a commercial building they jointly owned. The defendant then asked for an order compelling plaintiff to sell the building to defendant for $10 million. Plaintiff argued that the law required it to be put out to bid, to get the highest price. The trial judge had nevertheless ordered the building sold to the defendant for $10 million.
I read the law, and decided that the plaintiff was right. But that might not be enough to get a writ. So, after reading the record, I called the trial lawyer. “What’s the story?”, I asked. He replied, “The story? The judge didn’t follow the law.” “Not that story,” I replied, “what’s the real story? What happened in the real world? What led to this dispute? I didn’t see that story in the trial court record.” He said, “Well, the decedent – Joe – had two families by two wives, and –“ I said, “Wait a minute. Two wives one after the other, or two at the same time?” “Two at the same time."
I was stunned. Two at the same time?
I’m an appellate lawyer. People think of us as scholars, immersed in studying ancient dusty tomes, distinguishing cases, and researching arcane issues of legislative history. We do some of that, but the best appellate lawyers focus on telling stories – stories that reek of the injustice done to our clients.
Trial lawyers try cases to jurors that want to hear a good story. Surprisingly to some people, appellate judges are just as human as those jurors. The written opinions of appellate courts might sometimes seem dry and legalistic, but that’s because their traditional role is to appear unemotional. Usually, their opinions don’t reveal how much the story affected them.
So I really wanted to hear the rest of the “two wives” story.
Here’s what happened. Joe married Wife #2 while still married to Wife #1. When Wife #1 found out, she was understandably furious, but she stayed with Joe anyway and had kids with him. Joe bought a house for each wife and family - and spent every other night with each wife! Wife #1 passed her anger at Wife #2 down to her children – including the defendant, her heir, who refused to cooperate with the plaintiff, who was Wife #2’s heir.
I said, “That’s a terrific story. Let’s put it in evidence.” He said, “I didn’t think it mattered. The only legal issue was the trial court’s duty to get the highest price.”
He was right. That was “the only legal issue.” Strictly speaking, the story was legally irrelevant. But it did matter – to help win the case.
I told the lawyer, “Look, I really need that story. It is notoriously difficult to get a writ of mandate from an appellate court, even when you’re right on the law. The grant rate hovers around 10%. Most writ petitions are boring. This one will be boring too if we can’t pump some life into it with this great story about ‘the guy with two wives.’”
He said, “OK, but it’s too late to get it into the trial record. The judge already ordered the sale.” I said, “I could simply attach to our petition a declaration from the client telling the story, but that wouldn’t look good if we haven’t first presented that story to the trial judge. There’s still time for a motion for reconsideration, so please file one and I helped him prepare the declaration. We also included some “new evidence” – a recent offer from an outside buyer – to meet the legal requirement for a motion to reconsider. attach the declaration to it.”
I did not expect the trial judge to grant the motion. They rarely reconsider motions they’ve decided. But this one did – and then denied defendant’s motion. So I didn’t need to file the petition for writ.
Was it the story, or simply the new evidence? We’ll never know. But the story explained the defendant’s possible motive: he was angry at the plaintiff and determined to hurt her – even if it cost him some money. This might well have caused the trial judge to take a close second look at his ruling.
I’ve come across this problem many times, and this isn’t the first time I’ve helped get a motion for reconsideration granted by telling a good story. A trial lawyer looks up the elements of his cause of action, then dutifully pleads and proves them. “I’m done. I should win.” Maybe you should, but sometimes you don’t.
Judges are busy and rushed, and sometimes they just don’t like a party or even the law. So even when you don’t think you need to, tell a good story.
Sometimes a lawyer says, “There is no story. This is a boring partnership dispute. It’s only about numbers.” Nonsense. Every lawsuit involves a fight, and people like to read about a fight – if it’s presented in an interesting way. There are people, personalities, and emotions behind every dispute about “numbers.”
Keep the trial judge interested, and give appellate lawyers the ammo we need to perk up appellate judges and their staff attorneys.