Appellate Law

Please visit The UCL Practitioner

Posted on March 23, 2009
Over the past couple of months, I haven't had time to keep The Appellate Practitioner updated in the way I'd like to. Therefore, I am putting the blog on hiatus for the time being. Please visit my primary blog, The...

"A High Court Training Regimen"

Posted on January 05, 2009
Friday's Recorder had an article on a new moot program being organized at U.C. Berkeley for attorneys with California Supreme Court cases. It sounds very similar to what Professor Myron Moskovitz has been doing at Golden Gate University School of...

"The Early Brief Gets the Worm"

Posted on December 08, 2008
Slate has an interesting jurisprudence essay on the impact of amicus filings at the U.S. Supreme Court level. Adam Chandler, "The Early Brief Gets the Worm: Liberal groups are ceding a key way to influence the Supreme Court," Slate (Dec....

"Five Oral Argument Tips ? For Judges"

Posted on November 24, 2008
Howard Bashman has reprinted an interesting article from the October 2008 issue of The Federal Lawyer called "Five Oral Argument Tips ? For Judges." The article provides the perspective of United States District Judge Michael W. Mosman of the District...

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New opinion on undertakings pending appeal: Leung v. Verdugo Hills Hosp.

Posted on November 13, 2008
In Leung v. Verdugo Hills Hosp., ___ Cal.App.4th ___ (Nov. 14, 2008), the Court of Appeal (Second Appellate District, Division Four) discussed how to calculate the amount of the undertaking required to stay enforcement of a money judgment pending appeal...

2008 Court Statistics Report

Posted on October 30, 2008
The California Judicial Council's 2008 Court Statistics Report is available at this link. [Via Legal Pad.]

New decision on preservation of instructional error for appeal: Bourgi v. West Covina Motors, Inc.

Posted on October 01, 2008
In Bourgi v. West Covina Motors, Inc., ___ Cal.App.4th ___ (Sept. 24, 2008), the Court of Appeal (Second Appellate District, Division Eight) addressed preservation of a challenge to instructional error on appeal: Initially, we address whether appellant has waived on...

MCLE program: "Handling Civil Appeals and Writs in California State Courts"

Posted on September 30, 2008
CEB will present a day-long seminar, "Handling Civil Appeals and Writs in California State Courts," on Friday, October 3, 2008 in Los Angeles and on Friday, October 17, 2008 in San Francisco. Click on the link for more info. Here...

"Winning Business Litigation Appeals in the California Courts"

Posted on September 22, 2008
On October 1, 2008, the Appellate Practice Section of the Orange County Bar Association will present "Winning Business Litigation Appeals in the California Courts," featuring Presiding Justice Norman L. Epstein of the Second District Court of Appeal, Division Two...

"Why Are Some Lawyers and Their Clients Reluctant to Engage Appellate Counsel"

Posted on September 17, 2008
Greg May at the California Blog of Appeal asks the question and provides a preliminary answer.

Seeking successful depublication requests

Posted on August 18, 2008
I am always trying to figure out what types of arguments the California Supreme Court finds persuasive in deciding whether to depublish a Court of Appeal opinion under Rule of Court 8.1125. As we all know, depublication orders are extremely...

Persuasive Legal Writing - November 12, 2008

Posted on August 14, 2008
On Wednesday, November 12, 2008 from 9:00 a.m. to 12:15 p.m., the Bar Association of San Francisco will present its seventh annual seminar on persuasive legal writing, featuring First District Court of Appeal Justice Stuart R. Pollak and certified appellate...

The Triennial First District Appellate Symposium: The View from the Bench - November 8, 2008

Posted on August 11, 2008
On Saturday, November 8, 2008, the Appellate Practice Section of the Bar Association of San Francisco will present its Triennial First District Appellate Symposium, a day-long seminar featuring justices and staff attorneys from the First District, as well as experienced...

Ninth Circuit certifies another question to the California Supreme Court: Klein v. United States

Posted on August 07, 2008
On July 30, 2008, the Ninth Circuit certified another question to the California Supreme Court under Rule of Court 8.548: Does California Civil Code § 846, California?s recreational land use statute, immunize a landowner from liability for acts of vehicular...

"Are Reply Briefs Really Necessary?"

Posted on August 04, 2008
Friday's Recorder has an article called "Are Reply Briefs Really Necessary?" California Supreme Court Chief Justice Ronald George and Associate Justice Kathryn Werdegar both seem to think so.

Supreme Court accepts questions from Ninth Circuit in two cases

Posted on June 30, 2008
In April, I reported that the Ninth Circuit had, within a seven-day period, made requests for decision under California Rule of Court 8.548 in two separate cases. On June 18 and 25, 2008, the California Supreme Court granted the requests...

"Debate Heats Up Over Unpublished Opinions"

Posted on May 30, 2008
The May 2008 issue of California Lawyer has an article called "Debate Heats Up Over Unpublished Opinions." The article reports on a lawsuit filed in October 2007, Hild v. California Supreme Court, No. C-07-5107-JCS (N.D. Cal.), in which the plaintif....

Informal talk on appellate law blogs at next week's BASF Appellate Practice Section meeting

Posted on May 21, 2008
At next week's meeting of the Bar Association of San Francisco, Appellate Practice Section, I will be speaking informally on law blogs generally and appellate law blogs in particular. I'm happy to be able to announce that Mr. Philip Obbard,...

"The Seven Deadly Sins in a Case Headed for Appeal"

Posted on May 15, 2008
On Thursday, May 22, 2008, the Bar Association of San Francisco will present an MCLE program called "The Seven Deadly Sins in a Case Headed for Appeal." The program will take place from noon to 1:45 p.m. (registration starts at...

"Convincing a Federal Court of Appeals"

Posted on May 12, 2008
The ABA Litigation Section's May 2008 installment of "Tips from the Trenches" is by Seventh Circuit Judge Richard A. Posner, "Convincing a Federal Court of Appeals." A tidbit: In a case that is not controlled by precedent, the task of...

Two tidbits for appeals in class action objector cases: Chavez v. Netflix, Inc.

Posted on May 05, 2008
The Court of Appeal's opinion in Chavez v. Netflix, Inc., ___ Cal.App.4th ___ (Apr. 21, 2008) has two tidbits for those of us whose practices intersect appellate law and class action law: "[A] class member who timely objects to a...

Preserving issues on appeal: Woods v. Union Pacific Railroad Co.

Posted on April 30, 2008
The Court of Appeal's opinion in Woods v. Union Pacific Railroad Co., ___ Cal.App.4th ___ (Apr. 15, 2008; pub. ord. Apr. 28, 2008), begins with this paragraph: Plaintiff Raymond A. Woods appeals from a judgment entered following the grant of...

"Making Your Case: The Art of Persuading Judges"

Posted on April 28, 2008
U.S. Supreme Court Justice Antonin Scalia and legal writing expert Bryan A. Garner have collaborated on a new book that I'm looking forward to reading: Making Your Case: The Art of Persuading Judges (Thomson West 2008). The latest issue of...

Be careful what you wish for when seeking rehearing: Buell-Wilson v. Ford Motor Co.

Posted on April 21, 2008
For two very different takes on the Court of Appeal's order modifying its opinion in Buell-Wilson v. Ford Motor Co., ___ Cal.App.4th ___ (Mar. 10, 2008; mod. Apr. 10, 2008), a punitive damages case, compare this post from the California...

Ninth Circuit certifies two questions to California Supreme Court in past 7 days

Posted on April 16, 2008
Within the past seven days, the Ninth Circuit has issued two orders asking the California Supreme Court to rule on controlling legal questions pursuant to California Rule of Court 8.548: Murray v. Alaska Airlines, Inc., ___ F.3d ___ (9th Cir....

Writ review appropriate when right to counsel of choice is implicated: County of Santa Clara v. Superior Court (Atlantic Richfield Co.)

Posted on April 14, 2008
In County of Santa Clara v. Superior Court (Atlantic Richfield Co.), ___ Cal.App.4th ___ (Apr. 8, 2008), the Court of Appeal (Sixth Appellate District) explained that writ review is particularly appropriate in cases implicating the right to counsel of one's...

"Around the U.S., High Courts Follow California?s Lead"

Posted on March 24, 2008
On March 11, 2008, the New York Times reported on a study published in the U.C. Davis Law Review finding the California Supreme Court to be the most influential state court in the nation over the past 65 years. According...

Procedures for electronic service of Court of Appeal briefs on Supreme Court now available

Posted on March 19, 2008
In early January, I reported on an amendment to Rule of Court 8.212(c)(2) to permit electronic service of Court of Appeal briefs on the Supreme Court. The advisory notes to the amended rule said that instructions would appear on the...

New opinion on timing of notice of appeal: Adaimy v. Ruhl

Posted on March 03, 2008
In Adaimy v. Ruhl, ___ Cal.App.4th ___ (Feb. 28, 2008), the Court of Appeal (Second Appellate District, Division One) dismissed the appeal because the notice of appeal was filed one day late. The opinion is very instructive and worth reading....

Appealability of orders denying class certification: Alan v. American Honda Motor Co. on remand

Posted on February 18, 2008
In Alan v. American Honda Motor Co., 40 Cal.4th 894 (2007), the Supreme Court addressed whether a notice of appeal had been timely filed from an order denying class certification. Holding that the notice of appeal was timely, the Supreme...

New decision on standard of review for private attorney general fee awards: Roybal v. Governing Board

Posted on February 14, 2008
In Roybal v. Governing Board of the Salinas City Elementary School District, ___ Cal.App.4th ___ (Jan. 11, 2008; pub. ord. Feb. 6, 2008), the Court of Appeal (Sixth Appellate District) clarified the standard of review for attorneys' fees awards under...

Supreme Court grants review to resolve Biljac issue: Reid v. Google Inc.

Posted on February 11, 2008
On January 30, 2008, the Supreme Court granted review in Reid v. Google, no. S158965. Here is the Court's statement of issues on review: (1) Should California law recognize the "stray remarks" doctrine, which permits the trial court in ruling...

Justice Roberts' oral argument preparation

Posted on January 21, 2008
I'm reading Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court (The Penguin Press 2007) by Jan Crawford Greenburg. On pp. 188-189, there is a kernel of insight into how United States Supreme...

Supreme Court service copies of appellate briefs may now be served by email!

Posted on January 04, 2008
Happy New Year! A few interesting amendments to the Rules of Court went into effect on January 1, 2008. For example, Rule of Court 8.212(c)(2) used to require that four paper copies of all briefs filed with the Court of...

"Corrigan Leans to the Right on Bench"

Posted on December 11, 2007
Yesterday's Recorder had a very interesting article (subscription) by Mike McKee about California Supreme Court Justice Carol A. Corrigan, who will celebrate her two-year anniversary as a justice in early January.

"One doghouse"?

Posted on December 06, 2007
If you've ever seen a reference to "doghouses" in the California Supreme Court's online docket and wondered what it meant, the Recorder had a short piece last week (subscription; scroll down) explaining it: The doghouses in question aren't the homes....

Evidentiary objections and Biljac

Posted on December 03, 2007
On November 29, 2007, the Daily Journal had a very interesting article (subscription) addressing two recent decisions that have revived the debate over whether Biljac Assoc. v. First Interstate Bank, 218 Cal.App.3d 1410 (1990) has been overruled. The two recent...

Appeal from non-appealable order dismissed: Harrington-Wisely v. State of California

Posted on November 29, 2007
In Harrington-Wisely v. State of California, ___ Cal.App.4th ___ (Nov. 20, 2007), the Court of Appeal (Second Appellate District, Division Seven) held that a stipulation and order purporting to be "final" and "appealable" could not confer appellate jurisdiction if it...

"Making Your Case: The Art of Persuading Judges"

Posted on November 27, 2007
Yesterday's Recorder reported on a new collaboration between U.S. Supreme Court Justice Antonin Scalia and legal writing maven Bryan Garner. Their book will be called "Making Your Case: The Art of Persuading Judges." The article says that the book will...

Supreme Court proposal to reduce backlog of death penalty cases

Posted on November 26, 2007
As reported in the San Francisco Chronicle and the Los Angeles Times, last week the California Supreme Court issued a proposal for reducing the backlog of death penalty cases now pending on its docket. The proposal is to amend the...

A writ discharged as improvidently granted is no longer a "cause"

Posted on October 29, 2007
If the Court of Appeal issues an alternative writ, but then wishes to discharge the writ as improvidently granted, does the matter remain a "cause" that must be decided with argument and a written opinion on the merits? The answer...

"From Pen-and-Paper Man to Internet Guru"

Posted on October 25, 2007
Yesterday's Daily Journal had an article (subscription) about First District Court of Appeal Justice James A. Richman, including some interesting comments about his recent Demps decision, in which the First District overruled Biljac: Richman's flair for prose has come through...