California Defamation Law Blog : Los Angeles Defamation & Anti-SLAPP Lawyer & Attorney : Adrianos Facchetti Law Firm

I outlined in a previous post how risky it is for a losing plaintiff on an anti-SLAPP motion to appeal a trial court's ruling. The primary reason being that a prevailing defendant may be awarded his attorney's fees for opposing the SLAPP at the trial and appellate levels.

But in this post I want to lay off the doom and gloom (after all, it's another sunny day in Los Angeles) and discuss what the standard of review is if you (whether Plaintiff or Defendant) choose to appeal a trial court's ruling.

A "standard of review" is lawyer-speak for how much deference an appellate court will give to a lower court in reviewing its decision. In the anti-SLAPP context, the standard of review is de novo (which means "anew") because such orders present pure questions of law. This means the appellate court gives no deference to the lower court's ruling and decides the matter with fresh eyes.

This apparently relaxed standard may encourage a losing party to appeal, however, in reality, most appellate decisions end up affirming the trial court's ruling for a number of reasons which I won't go into here. That coupled with the specter of getting hit with attorney's fees should cause an appealing party to stop and think before file an appeal.

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I understand very well that lawyers have an obligation to zealously advocate on behalf of their clients. However, there are certain tactics which attorneys should never employ. One such tactic is to insert irrelevant matter in a pleading in order to gain a PR advantage over a defendant (e.g., personal details about somebody's life, irrelevant and prejudicial allegations). 

Celebrity defamation lawyers do it all the time, perhaps more than other lawyers.

I imagine that some of these lawyers succumb to pressure from their clients, or, perhaps, they believe this technique is effective.

But I believe it is ineffective for a number of reasons.

First, courts see right through it. They recognize that these types of allegations are nothing more than an attempt to prejudice the defendant in the eyes of the public and the court.

Second, I believe it decreases the likelihood that a case will settle because it creates more antipathy between the parties. While this may please a small minority of defense lawyers who are being paid by the hour, it is bad news for the client.

Third, it results in a "tit-for-tat" situation where the defendant feels compelled to respond with its own set of invective allegations.

Fourth, Judges simply do not like it when lawyers employ these kind of tactics, and in some cases, it may negatively affect the client.

Instead of inserting these kinds of irrelevant allegations in a pleading, lawyers should strive to draft concise complaints, including only the facts necessary to state a cause of action.

This would promote judicial economy and is a more efficient way to litigate a case (which is usually better for a client.)

About the Author: Adrianos Facchetti is a Defamation Lawyer located in Los Angeles, California. He practices law in the areas of defamation, libel, and slander law. 

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