Appellate Law

Blogroll addition: Resolving Discovery Disputes

Posted on February 11, 2020
I think you’d have a hard time finding any attorney who enjoys the process of written discovery. The process is unpleasant, especially when dealing with a stubborn party or counsel. The costs can be staggering. It gets even more unpleasant when disputes arise...

Supreme Court finds attorney?s notice of appeal from attorney sanctions award sufficient if it names only the client as the appellant

Posted on January 31, 2020
A lawyer has a right to appeal a sanctions award against the lawyer even if that lawyer is not a party to the underlying lawsuit. It is equally undisputed that a timely notice of appeal is a jurisdictional requirement. So what happens when a lawyer who wishes to appeal from an order directing the lawyer to pay monetary sanctions files a notice of appeal listing only the lawyer’s client as the appellant? In K...

?Quoth the Judge, ?Nevermore'?

Posted on October 03, 2019
If you have ever had the itch to write something like the title of this post into a brief, you might enjoy “What Lawyers Can Learn from Edgar Allan Poe,” one of the latest legal papers available from the Social Science Research Network. Will it really teach you how to write a brief that resembles a horror story? No...

Sticky post (newer posts below this one): CAUTION: This blog has been hacked

Posted on June 06, 2019
I just got a client inquiry based on a 2008 post, so I looked at the post, and . . . YIKES! I found someone had hacked my blog and inserted advertisements into the post! The advertising links are gone from that post now, and I’ll be changing my a password as soon as I finish with this post, but it looks like I now have to look through my other 800+ blog posts for signs of similar shenanigans...

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I?m back!

Posted on February 06, 2018
Or, should I say, the blog is back. I’m not sure how much blogging I will do in the near future, but at least the old posts are up again after an extended outage. The fix was really simple, but it took three tech support guys at my hosting provider, over the course of a week, to figure out that simple solution...

TrueFiling comes to the Second District Court of Appeal

Posted on September 25, 2017
Perhaps the title of this post should be the other way around: The Second District Court of Appeal comes to TrueFiling. Although the The Second District has had e-filing for some document sin place for several years, it appears to be the last appellate court in the state to embrace e-filing of everything via TrueFiling...

Mandatory e-filing in the California Supreme Court is imminent ? learn the rules!

Posted on August 21, 2017
The California Supreme Court adopted voluntary e-filing this summer, but e-filing will become mandatory on September 1, 2017. The court uses the TrueFiling system, which I have found to be rather user-friendly. The Supreme Court’s e-filing rules are available in PDF format on the court’s website, and they are extensive...

How flexible is that midnight electronic filing deadline in federal court?

Posted on August 21, 2017
When I was a young lawyer, my mentor told me, “Practice law as if the rules will always be strictly enforced against you but will never be strictly enforced against the adverse party.” Wise words. Last week I posted about a party that applied for a 15-minute extension of time to file its documents with the federal district court in Ohio because of some technical difficulties it encountered with the electronic filing...

Should a respondent always move to strike a defective appellant?s opening brief?

Posted on August 15, 2017
A brief must ?[s]tate each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority.? (Cal. Rules of Court, rule 8.204(a)(1)(B).) A party may move to strike the adverse party?s brief if it fails to comply with this or other requirements of rule 8...

The 15-minute filing extension, brought to you by the era of midnight electronic filing deadlines

Posted on August 14, 2017
When I was in law school, my wife was an assistant to a department head in an environmental consulting firm. Frequently, when I asked her what kind of day she’d had at work, she would respond that the scientists had made her day nuts by working on a project proposal at the last minute, forcing  the support staff to scramble like mad to make the FedEx deadline (usually 5 p...

Long-derided Clemmer v. Hartford Insurance Co. clarified by Supreme Court: an order denying a motion to vacate under Code of Civil Procedure section 663 is appealable

Posted on June 15, 2017
In 2007, I wrote about the questionable rule of Clemmer v. Hartford Insurance Co. (1978) 28 Cal.3d 865, which concluded that an order denying a motion to vacate made under Code of Civil Procedure section 663 (a ?section 663 motion to vacate?) is not appealable: Probably no Supreme Court opinion has been more ignored by the Courts of Appeal than Clemmer v...

A light-hearted Friday post: what is the standard of music on appeal?

Posted on October 28, 2016
I wrote last year about In re Christopher B., case no. C077467 (3rd Dist. Sept. 28, 2015), a cautionary tale about a trial court’s “clarification” of its order (read: “void modification for lack of jurisdiction”). Justice Butz’s concurring opinion opened with this sentence: “With apologies to Dolly Parton, here I go again, concurring with myself...

Appellate judge Alex Kozinski addresses the dangers of unsettled science in the courtroom

Posted on September 20, 2016
Or, as the headline over Judge Kozinski’s opinion piece in today’s Wall Street Journal calls it, “voodoo science.” And what this justice on the Ninth Circuit Court of Appeals (a federal appellate court) has to say has nothing to do with global warming (at least not directly)...

Will appeals lawyers be replaced by computers?

Posted on September 16, 2016
Technology has been displacing low-wage and less-skilled workers for a long time. Is it time for white collar professionals ? including lawyers ? to fear they are next? At  The American Interest blog: “Venture capital money keeps flowing to promising new tech companies that are working to automate many of the routine tasks conducted highly-paid 20-somethings at big city corporate law firms...

Second District Court of Appeal to implement TrueFiling e-filing system in late 2016

Posted on September 07, 2016
According to a notice I received today from the California Appellate Project: The clerk of the 2nd District Court of Appeal has asked us to inform the panel that True Filing will be available in this district beginning in November.  For two months, November and December, True Filing will coexist with the present eFiling system presently being used in the district...

The 2015 edition of the California Litigation Review is Out

Posted on April 14, 2016
The 2015 edition of the California Litigation Review hit my mailbox yesterday. It is published by the Litigation Section of the California State Bar and it has some terrific coverage of appeals and writs developments last year . . . and I don’t say that just because the vast majority of the cases examined in it were covered here as they happened, including: Jameson v...

Will a death penalty initiative make it easier to obtain Supreme Court review of your civil case?

Posted on April 14, 2016
Death penalty cases can be automatically appealed to the Supreme Court, but a mere civil litigant has to ask the supreme court ? convince it, really ? to review its case. The odds are terrible; only about 1 in 25 petitions for review succeeds. Those odds may be going up a little after this year...

Insight into the Supreme Court?s decisions on whether to hear cases

Posted on March 31, 2016
The Los Angeles Times has a story today on Justice Goodwin Liu, or, more particularly, on how his two recent lengthy dissents from orders denying review give some insight into what the court’s reasoning was. Usually, an order denying review is quite terse and gives no clue as to why the court reached its decision not to grant review...

Does Internet technology influence the way lawyers and judges think? Should it?

Posted on March 09, 2016
The answer to both questions in the title of this post is “no,” judging from this abstract of a paper by Michael Whiteman, Associate Dean for law Library Services & Information Technology at Northern Kentucky University – Salmon P...

The patience of the Court of Appeal has its limits

Posted on February 19, 2016
I wrote the other day about one aspect of Younessi v. Woolf, case no. G051034 (4th Dis. Feb. 16, 2016) (its illustration of the rule that a court of appeal may affirm on an alternate ground supported by the record), but there is a second lesson to glean from the case, regarding the limits of the appellate courts’ patience with counsel’s untimely submissions...

Affirming on appeal on an alternate ground ? the rule as applied to section 473(b) motions for relief

Posted on February 17, 2016
Sometimes, the trial judge’s reasoning underlying a judgment is so obviously wrong that it seems to present a “slam dunk” appeal. But the rules of appellate review favor the judgment below, and that slam dunk (really, there is no such thing on appeal) can turn out to be a miss...

The twists and turns of precedent

Posted on February 03, 2016
Lawyers, and especially appellate lawyers, talk about “precedent” all the time, but do we regularly consider the rationale behind the rules of precedent and stare decisis? Mary Whisner does. Whisner is a reference librarian at the University of Washington College of Law, and sets forth some of her views in a paper called Exploring Precedent, brought to us courtesy of the Legal Writing Institute and the Social Science Research Network...

?Petty Theft Auto? just doesn?t have the same ring to it

Posted on January 13, 2016
Enthusiasts of the “Grand Theft Auto” video game might think that “petty theft auto” sounds rather wimpy, but to a felon car thief seeking a sentence reduction under Proposition 47, “petty theft auto” sounds pretty good after the decision in People v...

To the Court of Appeal, there is no such thing as a ?wrongly decided? Supreme Court case

Posted on October 26, 2015
Last week, I wrote about Miranda v. Anderson Enterprises, Inc., case no. A140328 (1st Dist., Oct. 15, 2015), describing how the appellant there benefited from a Supreme Court decision (Iskanian) that came out after the judgment from which the appellant appealed, and which so squarely addressed the issue on appeal that the Court of Appeal spent only a paragraph on its substantive discussion of the case...

The lack of a reporter?s transcript can kill your appeal

Posted on October 21, 2015
Jameson v. Desta, case no. D066793 (4th Dist. Oct. 20, 2015) is a grim reminder of the impact made by the court’s budget crisis, which resulted in the loss of many court-employed court reporters, requiring that parties provide their own court reporters for trial at their expense...

It is important to keep up with the law while your appeal is pending

Posted on October 20, 2015
Most lawyers I know ? at both the trial level and the appellate level ? keep up with the daily “advance sheets,” which provide a brief summary of Supreme Court and Court of Appeal decisions published the day before. It is an important habit, because you never know when a great decision for your pending case is going to come up...

Third District Court of Appeal creates a ?quagmire? regarding Prop 47 sentence reductions

Posted on September 30, 2015
You don’t have to take my word for it. The court uses the word “quagmire” in yesterday’s decision in People v. Scarbrough, case no. C075414 (3d. Dist. Sept. 29, 2015), in which it holds that a trial court lacks jurisdiction to recall and reduce sentences under Proposition 47 when the judgment for those crimes is on appeal...

The implications on appeal of ?clarified? trial court orders

Posted on September 29, 2015
It drives me crazy when an adverse party asks the trial court to “clarify” a recent ruling. Too often, such a request is not a request for clarification at all, but instead an effort to expand the scope of the order or otherwise change its meaning...

The kitchen sink has no place on appeal

Posted on September 28, 2015
We’ve all heard of doctors lamenting the need to order lots of tests for the most mundane symptoms in order to protect themselves from malpractice lawsuits. Are lawyers exhibiting equivalent behavior? Last week, a post at the Lawyerist blog (Want To Destroy Your Case? Throw In The Kitchen Sink...

Language help for everyone, not just lawyers

Posted on September 18, 2015
In his latest book, The Sense of Style ? described by one columnist as “a modern version of Strunk and White’s classic The Elements of Style, but one based on linguistics and updated for the 21st century” ? Harvard cognitive scientist and linguist Steven Pinker explores the most common words and phrases that people stumble over...

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