Oct. 16, 2014
Esner, Chang & Boyer
See more on Esner, Chang & BoyerPasadena, Walnut Creek | Appellate
The firm's strength, he added, is the partners' knack for identifying the relevant issues and clearly communicating them in a credible and persuasive way. Sometimes, trial lawyers bring Esner and colleagues in while the litigation is ongoing. "We get called on to help with motions or strategy or jury instructions by counsel who see a potential appeal looming or are seeking to avoid one," he said.
"Trial lawyers hire us because they believe we have a particular skill set that improves the chances for success on appeal. The flip side of that coin is that we believe trial lawyers have a particular skill set that improves the chances for success in the trial court."
One current case over franchise liability issues involves a plaintiff who suffered serious injuries when struck by a hit-and-run driver while receiving roadside aid from the Automobile Club of Southern California.
The state Supreme Court put the matter on hold until it ruled in August in Patterson v. Domino's Pizza LLC that franchisors cannot be held vicariously liable as an employer or principal for misdeeds of its franchisees.
That was bad news for the firm's argument that the tow truck company assisting his client was the auto club's agent. "It didn't go the way we hoped it would," Esner acknowledged, "but we have arguments not ruled out by Domino's. We're still alive."
In dealing with new clients, Esner said, "it's important to listen to any strongly-held point of view about the outcome below. Then, verify. Go into the available record. Is what's being claimed what actually occurred?"
"Then you must be diplomatically honest about the likelihood of success. Does an appeal have arguable merit? Is it a longshot? Is there a chance you'll waste your money? It's not good business practice to take a case where you know going in you're not going to prevail, based on what you know about how appellate courts operate."
Esner honed his appellate skills at the firm now known as Horvitz & Levy LLP before striking out in 1990 to co-found his own firm. Chang, also a Horvitz veteran with a stint on his resume as a staff attorney at the state Supreme Court, joined in 1995.
They brought on Boyer in 2007 after she'd been the appellate attorney at McNicholas & McNicholas LLP. "Andy and I are at the stage where we're getting up there," Esner said. "Holly reminds me of how I was when I opened the firm."
He said the work remains deeply satisfying. "Being able to obtain a reversal of a judgment in a case where a plaintiff has wrongfully been denied compensation or being able to preserve a judgment where that compensation has been awarded is a thrill," Esner said.
- John Roemer
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