James D. Crosby, Attorney at Law. Complex and General Business Litigation and Trial Representation. San Diego, California. O: (619) 450-4149 C: (858) 705-0083 Email:

“The law, like boxing, prohibits hitting below the belt.” – Martinez v. State.

James D. Crosby, Attorney at Law - Complex and General Business Litigation and Trial Representation - San Diego, California

In an interesting and, in a warped kind of way, entertaining new opinion, Martinez v. State  (2016) 238 Cal. App.4th 559, the Fourth District Court of Appeal tore into defense counsel for misconduct in the trial of a motorcycle injury case and into the trial judge who condoned such misconduct. The described acts of attorney misconduct include repeated violations of in limine orders, improper allusions to the defendants’ financial status, repeated character attacks and, get this, inflammatory references to Nazis. Though noting that “attorney misconduct is more common than reversal for attorney misconduct”, the Fourth District reversed and remanded the case for new trial based solely on attorney misconduct.     

What I find interesting about the case is not so much its analysis or its holding. Rather, I find the case interesting and worthy of note because of the way it is written. The opinion is exceptionally well-written – pointed, biting, persuasive, and highly quotable. We will be seeing the boxing passage from the opinion used as the title of this piece– “The law, like boxing, prohibits hitting below the belt.” – in many motions, briefs, and opinions in the future. It’s a great line. I’m sure I will use it when the need arises.

The following passage from the opinion is an artful, nuanced, but devastating, comment on the conduct of the trial judge in the case:

While Judge Di Cesare showed the patience of Job—usually a virtue in a judge—that patience here had the effect of favoring one side over the other. He allowed Bilotti to emphasize irrelevant and inflammatory points concerning plaintiff’s character so often that he effectively gave Caltrans an unfair advantage. Imagine a football game in which the referee continually flagged one team for rule violations, but never actually imposed any yardage penalties on it. That happened here and requires reversal.


Or this,

In forensics there is what has become known as “Godwin’s Law.” Broadly speaking, Godwin’s Law is that the first side in an argument to compare the other side to Hitler or the Nazis loses. Apparently unaware of this rule, Bilotti used Martinez’s damaged motorcycle to make a gratuitous, out-of-the-blue attempt to link Martinez to the Nazis.

I may be wrong, but I suspect there has never been a California appellate court decision that references “Godwin’s Law” on Nazi references!

While the case does include a nice summary of the factors to be considered in determining whether attorney misconduct is prejudicial so as to warrant reversal and a concise analysis of those factors, something that might be useful should attorney misconduct become an issue in one of your cases, that’s not why I like the opinion. I like it simply because of the way it is written!


None, really. Martinez v. State is just a fun opinion to read.

Take a few minutes – give it a read – I suspect your reaction will be similar to mine:


2 thoughts on ““The law, like boxing, prohibits hitting below the belt.” – Martinez v. State.

  1. Steve Groen says:

    Thanks for this. My favorite paragraph: “We have recounted the truly egregious, indisputable instances of misconduct. Martinez, in this appeal, asserts there is yet more. But we see no reason to go further. Suffice to say we found enough to establish attorney misconduct at least five pages ago.”


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