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Appellate Law

The California Blog of Appeal

Substantive legal developments in the California Courts of Appeal, California Supreme Court, and the Ninth Circuit Court of Appeals; Procedural law relating to the prosecution of appeals, writ petitions, and post-trial motions in state and federal courts in California; and practical skills essential to appellate practice.
By Greg May

Post Frequency: 1.6/day

Last Entry: November 06, 2009 at 02:13:34

En banc ninth tries to clear up the ?abuse of discretion? standard

Posted on November 06, 2009
The “abuse of discretion” standard of review, depending on the particular court applying it and the particular case in which it is applied, can sometimes seem about as clear as mud. The en banc Ninth Circuit set out to clear up the standard in United States v...

Big city justices roll into Napa

Posted on October 21, 2009
The First District Court of Appeal convened yesterday in Napa to hear two criminal cases at a public auditorium before about 400 high school students. The justices also treated the students to a Q&A session. Given that most people’s exposure to the law through the entertainment media nearly always involves a trial, this session strikes me [...

Well, just the impetus I needed!

Posted on October 17, 2009
If you are a regular reader, you know I’ve been AWOL for several months. What started as a short break turned into a hiatus, without so much as an announcement from me. Work and family issues made for such a hugely busy few months. For the past few weeks, I’ve been considering how to get started [...

Supreme Court announces court closure schedule

Posted on August 21, 2009
The California Supreme Court has announced the statewide court closure schedule made necessary, according to the announcement, by “California’s current fiscal crisis.” “The Supreme Court of California, the Courts of Appeal, and all superior courts will be closed on the third Wednesday of each month, starting September 16, 2009″...

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Review of Remand Orders: One Man?s Obsession

Posted on June 02, 2009
And I mean obsession in a good way. I never thought I’d out-geeked on the subject of jurisdiction, and especially not on the subject of appellate jurisdiction, but I think Jones Day partner Mark Herrmann�pulled it off today at his Drug & Device Law blog...

Can your clients help you be more persuasive?

Posted on May 14, 2009
Here’s an article on my short list of must-reads: in Know Your Client: Maximizing Advocacy by Incorporating Client-Centered Principles into Legal Writing Rhetoric Practice,�Rutgers-Camden law professor Jason Cohen�advocates that lawyers look beyond the typical “write for your audience” mindset and incorporate the client’s values into their legal writing...

A civil case and a criminal case look the same to a mailbox

Posted on April 24, 2009
For an appellant whose mail slot looks like the one pictured, there was an important decision yesterday. The California Supreme Court reached a sensible decision in Silverbrand v. County of Los Angeles, case no. S143929 (Apr. 23, 2009), in which the court holds that a prisoner’s pro se notice of appeal in a civil case is [...

Service of Summons via Social Media

Posted on April 08, 2009
Sometimes, a defendant manages to dodge service of summons quite skillfully. �A colleague of mine once resorted to serving a �defendant with summons at the defendant’s daughter’s wedding because the defendant had successfully dodged many prior service attempts...

Judge Bea calls out his colleagues

Posted on March 31, 2009
In a dissent from a Ninth Circuit denial of en banc review in�Lopez-Rodriguez v. Holder,�case no.�06-70868 (9th Cir. Aug. 7, 2008, r’hng en banc denied March 27, 2009), a case concerning the application of the exclusionary rule to civil deportation proceedings, Judge Bea authors an opinion that puts his view of the panel decision ? [...

Another Supreme Court Justice Meet-Up at Pepperdine

Posted on March 30, 2009
After hosting�Justice Alito and�Justice Scalia, Pepperdine recently hosted an event with Justice O’Connor.�Read appellate attorney Ben Shatz’s account of the Justice O’Connor event at the Los Angeles County Bar Association blog, en banc, where you can also find his previous posts on the�Justice Alito and� Justice Scalia�events.

Manufacturing appellate jurisdiction over a discovery ruling

Posted on March 19, 2009
When I read Brescia v. Angelin, case no.�B204003 (2d Dist. Mar. 17, 2009), I was reminded about how�Saturday Night Live once ran one a commercial parody for a product with the advertising slogan “It’s a dessert topping! It’s a floor wax! �It’s two products in one!” How do I make that connection? Because when I was [...

In re B.S.

Posted on March 18, 2009
I know the title of this post implies that you’re about to read some complaint about an illogical decision. �After all, I doubt there’s a litigator alive who hasn’t received an adverse ruling or verdict and thought, “What a load of B...

Looks Like I was Wrong about Tweeting Jurors.

Posted on March 13, 2009
I didn’t think we’d see them anytime soon. �I was very, very wrong. UPDATE: �So I got to thinking . . �. I’ve got 20 or 30 years left in my legal career. �Will I see a juror’s mental telepathy about a case raised as a ground for appeal? �I don’t know, but if mental telepathy [...

Scalia and Starr at Pepperdine

Posted on March 10, 2009
Too late, you’ve missed it. �But if you want to read all about the “conversation” between Dean Kenneth Starr and Justice Antonin Scalia held at Pepperdine yesterday, check out the very detailed write-up of the event �by appellate attorney Ben Shatz at En Banc...

Trial by Tweet

Posted on March 06, 2009
More accurately, I guess, trial coverage by tweet. �A reporter as been given permission by a federal judge in Kansas to pubish updates from the courtroom via Twitter. �A few of his dispatches by tweet: ? “Judge Marten is talking to reluctant witness in chambers with a court reporter transcribing the conversation...

Your RSS feed reader is not malfunctioning

Posted on March 04, 2009

The ?Poof? Principle

Posted on January 28, 2009
I don’t know if they coined the phrase ? kudos to whoever did ? but “the ‘poof principle” is the phrase the guys at California Attorney Fees use to sum up one aspect of Sanai v. Saltz, case nos. B198217 & B202787 (2d Dist. Jan...

A Published Supersedeas Case. Really!

Posted on January 21, 2009
From my lips to the Court of Appeal’s ears . . . or maybe from my keyboard to the Court of Appeal’s monitors . . . barely a week after I lamented how old most of the published case law is regarding supersedeas and other stays on appeal, along comes Veyna v...

Supremes Grant Cert in Teen Student Strip Search Case

Posted on January 19, 2009
Remember all the blog coverage (and not just here) about school officials’ strip search of a 13-year-old Arizona student in a “zero-tolerance” motivated quest for that dreaded scourge, Ibuprofen?� I covered the original decision upholding the search here, noted the grant of rehearing here, and the en banc reversal here...

Can Bad Legal Writing Get You in Trouble?

Posted on January 13, 2009
You bet it can, and your boss isn’t the only one who can create trouble for you.� To see what other kinds of trouble you can get into, and how to avoid it, check out this oldie but goodie (but just recently posted to SSRN), Ethical Legal Writing, from UT law professor Wayne Schiess of [...

Dominance and Submission at the Appellate Court?

Posted on January 08, 2009
But of course!� Not of the leather, whips and chains variety, though. “Dominance and submission” at appellate oral argument is one of the areas taken up by UNLV law professor Michael Higdon in his forthcoming Kansas Law Review article, available now at SSRN: Oral Argument and Impression Management: Harnessing the Power of Nonverbal Persuasion for a [...

?There is no exception for Supreme Court cases of ancient vintage.?

Posted on January 07, 2009
That’s from Mehr v. Superior Court (1983) 139 Cal.App.3d 1044, 1049 fn. 3, regarding the doctrine of stare decisis.� It’s a handy quote to keep in your arsenal for those occasions when you have to cite very old cases.� I can remember legal research and writing instructors pounding into our heads that we should always [...

Who Says CRC 8.108(f)(1) is for Cross-Appeals Only?

Posted on January 06, 2009
Certainly not Division Three of the Fourth District Court of Appeal.� In The Termo Co. v. Luther, case no. G038435 (Dec. 17, 2008), the court holds that the rule of court allowing the 20-day window for “any other party to appeal from the same judgment or order,” triggered by the clerk’s mailing of the notice [...

Judge Kozinski?s ?Dirty? Pictures May Not Be So Dirty

Posted on January 02, 2009
Remember the big “to do” about Judge Kozinski having posted material from an obscenity trial on his website?� My prior coverage concentrated mainly on how this could affect his qualification to preside over the trial, and noted the interesting fact that Kozinski, an appellate judge, was presiding over a trial at all...

I?m on Blogging Hiatus until the New Year

Posted on December 16, 2008
I’ve had a hard time getting back up to speed since returning from being out sick.� Fighting a lingering cold, catching up on old cases and jumping into new ones . . . being so busy and with Christmas approaching, this seems like a good time to take a blogging break...

Holiday Closure of Supreme Court?s Los Angeles Office

Posted on December 12, 2008
Be very, very careful with California Supreme Court filings over the holidays.� The Los Angeles office of the Supreme Court be closed some of that time, requiring you to file in San Francisco.� To get the closure dates,� download the PDF of the announcement...

A Note to my Feed Subscribers

Posted on December 01, 2008
A glitch over the weekend resulted in a post to this blog that didn’t belong here.� You’ll know it when you see it.� Rather than trying to figure out what it has to do with appeals, rest assured that it doesn’t . . . it didn’t even belong on the blog!� Sorry for any resulting [...

We’ve Moved! Go to Deuce

Posted on November 28, 2008
We’ve Moved! Go to Deuce and McLovin’s new blog: The Skepticrats

When a lawyer must include one or more issue statements in a brief, either for purposes of clarity or because required by court rule, and the lawyer has trouble formulating a succinct issue statement that correctly identifies the parties and the critical facts necessary to an understanding of the statement, where can the attorney find a resource to help him write a clear, succinct issue statement that is easily understood by the reader?

Posted on November 28, 2008
No, I haven’t “lost it” during my absence. The title of this post is a parody of a bad issue statement ? something we all see way too often. As for an answer to the question itself, this looks like a pretty darn good place to start.

Happy Thanksgiving, Everyone! And has anything interesting happened while I?ve been out?

Posted on November 26, 2008
Just a short post to wish everyone a happy Thanksgiving Day. My work schedule remains light as I continue to struggle through whatever crud I have. �Honestly, I thought I’d be over this by now, but the duration of this energy-sapping malady is going on four weeks! �Thanksgiving Day reminds me, however, that I should grateful [...

Where are all the new posts?

Posted on November 13, 2008
Regular readers who are wondering where I’ve gone (and are, hopefully, disappointed at my lack of posting the last few weeks) should know that the blog lives! �I, on the other hand, have barely felt among the living the last few weeks, dogged by some kind of head/sinus/allergy/flu/who-knows-what-it-is that has really wiped me out...

The Mindset of Appellate Judges

Posted on November 03, 2008
Here is a well-stated look into the minds of appellate judges, from a 2-year old column by Howard Bashman: One essential trait that an appellate lawyer must possess is the ability to think about legal issues from the perspective of judges who serve on appellate courts...

Does it Matter Who?s On Your Panel?

Posted on October 31, 2008
Our local appellate court in Ventura (Second District, Division Six) can be a good place to hang out if you’re looking for a chuckle. I don’t think I’ve ever left a session there without having at least once laughed, or at least smiled — just not in my own case...

Ever Felt Like Using an Expletive at Oral Argument?

Posted on October 31, 2008
I imagine swear words are material to cases quite often, especially in defamation or employment cases (the latter being the first time I had to put one in a brief).� But I suspect they are rarely the focus that they will be in oral argument in this case before SCOTUS...

Got a stay? Challenge the judge anyway!

Posted on October 30, 2008
Under Code of Civil Procedure 170.3, subdivision (c), a party may apply to disqualify the trial judge for cause, but must submit the statement of objection “at�the earliest practicable opportunity after discovery of the facts�constituting the ground for disqualification...

There?s No ?E? Before ?Mails? When it Comes to Triggering the Deadline to Appeal

Posted on October 28, 2008
Modern communication and the California Rules of Court collide in Citizens for Civic Accountability v. Town of Danville, case no. A121899 (1st Dist. Oct. 27, 2008), and the winner is . . . the rules! At issue: whether the�e-mailing of a notice that a judgment has been filed, with a link to access a copy [...

The Judgment, the Whole Judgment, and Nothing But the Judgment

Posted on October 25, 2008
Sometimes, a judgment is a mixed bag. That’s how all the parties must have viewed the judgment in Satchmed Plaza Owners Assn. v. UWMC Hospital Corp., case no. G038119 (4th Dist. Oct. 23, 2008). The judgment enforced Satchmed’s right of first refusal with respect to 22 owned medical office units by requiring UWMC to offer [...

New Law Blog: The California Constitution

Posted on October 22, 2008
Well, a young blog, at least, if not brand spanking new. The California Constitution was launched in August by Howard Rice partner Steve Mayer. Good luck! Hat tip: California Punitive Damages.

Why Some Lawyers and Their Clients are Reluctant to Engage Appellate Counsel, Part 4: ?This Case Needs a Specialist.?

Posted on October 21, 2008
(NOTE: This post is the fourth in a series. To read the announcement of the series and/or leave your ideas for subsequent installments, click here.) Today’s post looks at another ability-related reason the trial lawyer decides to handle the appeal...

What does ?abuse of discretion? mean in your case?

Posted on October 16, 2008
Sometimes, it seems that defining an “abuse of discretion” is like nailing jello to the wall (maybe worse, since the latter�is difficult, but not impossible).� There are many nuances to the standard, which can depend on the statute being applied, the basis for the abuse of discretion, and the particular procedural posture of the case...

Procedural Exits off the Appellate Freeway

Posted on October 13, 2008
�A year or so ago, I heard a California appellate court justice advise that the court of appeal examines every case for issues that will allow the court to dispose of the case without reaching the merits. He explained the process with a metaphor, which I’ll try to convey in this post (paraphrasing throughout)...

Why Some Lawyers and Their Clients are Reluctant to Engage Appellate Counsel, Part 3: ?No one knows the case better than I do.?

Posted on October 07, 2008
(NOTE: This post is the third in a series. To read the announcement of the series and/or leave your ideas for subsequent installments, click here.) Today’s post looks at another ability-related reason the trial lawyer decides to handle the appeal...

Judicial Opinion Shortcuts: Skipping the Substance of the Argument

Posted on October 02, 2008
Sometimes, a judicial opinion leaves you wondering what a party contended on appeal. �That’s always a little frustrating. �OK, not always, but when it involves a pet interest (in my case, jurisdiction), it leaves one wanting more. Such is the case with�White v...

Don?t Forget, Appellants: The Record is Your Burden, Too

Posted on October 01, 2008
Everyone knows, or should know, that part of the appellant’s burden of demonstrating prejudicial error is to present a record that adequately demonstrates the error. If you’re arguing the court erred in granting summary judgment, you’d think it would be pretty obvious to include all the moving papers, including the moving party’s statement of undisputed [...

A Great Resource: Social Science Research Network

Posted on October 01, 2008
I’ve occasionally downloaded scholarly papers from the Social Science Research Network, usually after seeing them mentioned at the Legal Writing Prof Blog. But until that blog’s recent post about how to stay up-to-date with the latest articles on legal writing, which provides links for subscribing to legal writing articles, I hadn’t really poked around SSRN [...

A Double Standard . . . of Review

Posted on October 01, 2008
An appropriate follow-up to last week’s post that discussed the pitfalls of the standard of review is United States v. Vega, case no.�07-50245 (9th Cir. Sept. 24, 2008). It illustrates a double standard that one wouldn’t ordinarily expect...

A Lesson in Collateral Order Doctrine Jurisdiction

Posted on September 30, 2008
Some lawyers not well-versed in appellate jurisdiction may find themselves fighting against one of two extremes when it comes to interlocutory decisions: the impulse to appeal everything (appealable or not), or failing to evaluate interlocutory orders for possible exceptions to the “final judgment rule,” figuring “why bother” until a final judgment is entered...

Why Some Lawyers and Their Clients are Reluctant to Engage Appellate Counsel, Part 2: ?It?s Just Litigation.?

Posted on September 23, 2008
(NOTE: This post is the second in a series. To read the announcement of the series and/or leave your ideas for subsequent installments, click here.) In my first post in this series, I broke down lawyers’ reasons for not engaging appellate counsel into two broad categories: those related to ability and those related to economics...

Proposed Meeting of Law Bloggers at the California State Bar Convention

Posted on September 23, 2008
Victoria Pynchon of the Settle It Now Negotiation Blog asked that I pass along her suggestion for a law blogger meeting at the California State Bar Convention this week, and I do so gladly. �From Victoria: Please let me know if you’re interested in a legal bloggers meeting at the state bar convention in monterey this [...

Gee, We?re Smart!

Posted on September 18, 2008
At his Legal-Writing Blog,�Wayne Schiess shares some observations from one of his students, who aspires to be an appellate lawyer and worked in the appellate practice department of a law firm. �See the professor’s post for all the details, but among the student’s observations: I realized why appellate lawyers at law firms are stereotypically labeled as [...

Why Some Lawyers and Their Clients are Reluctant to Engage Appellate Counsel, Part 1: Categories

Posted on September 17, 2008
(NOTE: This post is the first in a series. To read the announcement of the series and/or leave your ideas for subsequent installments, click here.) Well, it’s been four weeks since I promised a series of posts on this topic. �You were probably about to give up on me...

Peremptory Challenge to Judge After Remand Has Its Limits

Posted on September 15, 2008
Virtually every civil litigator knows about the procedure afforded by Code of Civil Procedure section 170.6 for disqualification of the judge assigned to the case. �Commonly called “papering the judge,” the requirements of the section are so meager that such challenges are also referred to as “peremptory” challenges, though not technically so (to my mind), [...

2008 California Court Statistics Report

Posted on September 04, 2008
Now available for PDF Download: 2008 Court Statistics Report: Statewide Caseload Trends, 1997-1998 through 2006-2007. �Always interesting to peruse. The first thing to jump out at me from this year’s report (in my thus far rather hasty review): the median time statewide for civil appeals (from time of filing the notice of appeal to the time [...

Law School Rankings Under Scrutiny Again

Posted on August 27, 2008
When I last wrote about law school rankings (in the summer of 2007), it was in response to a post at the Law School Innovation blog rounding up some reporting and commentary on law school rankings, including an article in National Law Journal about a potential boycott of magazine rankings surveys used by the magazines [...

An Important Discovery Ruling Overcomes a Deferential Standard of Review

Posted on August 27, 2008
For a prospective appellant (or, as in the case profiled here, the prospective writ petitioner), the “abuse of discretion” standard of review can be daunting, and may even convince the party that the pursuit of an appeal or writ is not worthwhile...

A Running Feud Between Courts?

Posted on August 22, 2008
Well, maybe “running feud” is a tad strong, but Legal Pad notes a history of bad blood between a California superior court judge and his district court of appeal. Hat tip: Cal Biz Lit.

Legal Writing Prof Blog?s Favorites

Posted on August 22, 2008
Check out Legal Writing Prof Blog’s list of favorite legal writing blogs and resources. Hat tip: the (new) legal writer.

Help Out Law Blogger Kimberly Kralowec

Posted on August 22, 2008
Looks like this is the week for appellate bloggers to embark on projects and solicit help from their readers. Unbeknownst to me until now, the day before I announced my intent to publish a series of posts on the reluctance of lawyers and clients to engage appellate counsel, Kimberly Kralowec�(pictured left) at The [...

?A Sadistic Urge to Torment Lawyers?

Posted on August 22, 2008
Image via Wikipedia I always assume that all of the rules of procedure will be strictly construed against me, and that opposing counsel will be allowed to get away with murder. To me, it’s the smart way to practice: dot your I’s and cross your T’s...

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

Posted on August 19, 2008
UPDATE: This post is included in Blawg Review #174 at Texas Appellate Law Blog. Why don’t some trial lawyers or their clients engage appellate counsel when it comes time for the appeal? Over the years, I’ve heard various reasons advanced for this...

The Results of the Shootout at the Amicus Corral

Posted on August 18, 2008
In a case that attracted amicus participation of noteworthy proportions, the California Supreme Court holds that a medical provider has no constitutional defense, based on freedom of religion and freedom of speech, to a claim for sexual orientation discrimination under California’s Unruh Act (Civ...

Don?t Give Up On Appellate Jurisdiction

Posted on August 15, 2008
The appellate courts are zealous about protecting their jurisdiction. When in doubt, it is not unusual for a court to ask for briefing on the issue even where both sides have assumed jurisdiction. And so the Supreme Court does in People v. Segura, case no...

It?s Kennedy?s Court

Posted on August 11, 2008
So says UC Irvine School of Law Dean Erwin Chemerinsky about the U. S. Supreme Court in his front-page piece in this month’s California Bar Journal. Simply put, on issues that are defined by ideology, the conservative position prevails in the Roberts Court except when Justice Kennedy joins with Justices Stevens, Souter, [...

Pepperdine?s Justice Alito Event ? Video Available

Posted on August 08, 2008
Pepperdine has video of the conference on judicial opinion writing that I commented on here (actually, I was commenting on Ben Shatz’s write-up of the event). �Here’s the description accompanying the video: The Honorable Samuel A. Alito, Jr...

A Judgment that Nobody Noticed Sinks an Appeal

Posted on August 07, 2008
How can the parties and the court all miss the fact that the court entered a judgment?� Well, when the document that operates as such isn’t labeled “judgment,” I guess one can occasionally slip by . . . to the appellant’s great misfortune in�Melbostad v...

The Value of a Good Reply Brief

Posted on August 06, 2008
As much as I keep up with appellate issues, some things catch me by surprise. According to this article: “There has long been debate in appellate circles whether reply briefs serve a worthwhile purpose. Some wonder whether justices even read them...

Flexibility on Appellate Jurisdiction

Posted on August 05, 2008
“Jurisdiction” and “flexibility” are terms that don’t really go together . . . most of the time. �But I’ve taken note before of the willingness of California appellate courts to “save” appeals through various devices, such as a generous construction of the notice of appeal, or treating an appeal from a non-appealable order as a [...

?E? is for ?Explain?

Posted on August 04, 2008
� If you’re writing according to a typical “IRAC” formulation, Professor�Mark E. Wojcik of John Marshall Law School and the Legal Writing Prof Blog�says you’re leaving an important letter out of that acronym. �Go to SSRN�to download his article from the November 2006 Student Lawyer�(yes, 2006, but he just posted the link yesterday)�on why adding an [...

Time for Another Wordpress Upgrade

Posted on August 01, 2008
I’m behind in upgrading to Wordpress version 2.6, so I’m going to try to do it this weekend. �That means a brief outage during the upgrade process. �Previous upgrades have gone smoothly, and with any luck, the blog should not be down more than about 15 minutes, probably late Friday or Saturday night.

Report from the Pepperdine Conference on Judicial Opinion Writing

Posted on August 01, 2008
Pepperdine hosted a conference Wednesday on the craft of judicial opinion writing, with a panel that included Justice Samuel Alito. LA appellate attorney Ben Shatz attended and today posts his write-up of the event at the Los Angeles County Bar Association Blog, En Banc...

My New Digs . . . and New Everything Else

Posted on August 01, 2008
Some of you may have noticed some changes in sidebar information that clued you in to my recent relocation and change of practice name. Most of you probably didn’t, so here’s everything you need to know (more than you need, actually) in one post...

Judge Bybee Pokes Fun (Update: He?s Not Alone)

Posted on August 01, 2008
When the Ninth Circuit Court of Appeals judges convened for their conference last year, they did so amid a lot of buzz about whether the circuit should be split up. If there is a similar cloud surrounding this year’s conference, I haven’t caught on to it...

Why Did the Supreme Court Punt on a Jurisdictional Issue?

Posted on August 01, 2008
Regular readers know I am a jurisdiction geek, and today I get to sink my teeth into a jurisdictional oddity. Well, not a jurisdictional oddity so much as the odd behavior of the Supreme Court with respect to a jurisdictional question. I’ll get to the Supreme Court in a minute...

Does Legal Writing Get Short Shrift at Law Schools?

Posted on July 31, 2008
Ray Ward at the (new) legal writer wonders out loud about the practice of using fellows (one-year contract instructors) to teach legal writing. �Make sure you read the comments, which come from prominent legal writing bloggers�Wayne Schiess�and Alan Childress of�The Legal Profession Blog, and perhaps more by the time you get there.

The Cover of Rolling Stone CITATIONS

Posted on July 31, 2008
You youngsters out there may not get the Rolling Stone reference (a big, big, song in the early 70s), but it is an irresistable one for me to make in announcing my newest article, because the article is featured on the cover of the August 2008 CITATIONS (along with my picture, to the great misfortune [...

How ?Intense? is Your Appellate Panel?

Posted on July 30, 2008
It might make a difference in how the members of the panel view your brief! In this highly unusual study, the authors looked for correlations between the use of “intensifiers” ? words like “clearly,” “obviously,” “blatant” and “very” ? in appellate briefs and the outcome on appeal...

Lawyers Must Eat ? Getting Your Attorney Fees on Appeal

Posted on July 29, 2008
You’d be hard pressed to find a better overview of federal appellate review of attorney fee awards than Moreno v. City of Sacramento, case no. 06-15021 (9th Cir. .July 28, 2008). Judge Kozinski’s analysis begins with the truism “lawyers must eat,” then goes on to analyze the district court’s attorney fee award under 42 [...

A Little Bit Funny, Mostly Not

Posted on July 25, 2008
When I found this Youtube video, I was hoping to send everyone off on their weekend with a good laugh. Then I watched it.� Don’t get it.� At all.� Which is why I’m not embedding it here, and you’ll have to follow the link. If you think you get it, leave [...

Appealing a Remand Order, and Intra-Circuit Stare Decisis

Posted on July 25, 2008
When I was in BigLaw, removing a case to federal court seemed a virtually automatic response to any suit that we believed implicated federal jurisdiction. If the federal district court refuses to exercise supplemental jurisdiction and remands the case back to the state court, how do you contest that ruling? That was the question facing [...

CARFAX Should Publicize This One

Posted on July 25, 2008
Image via Wikipedia CARFAX, a company that provides vehicle histories for automobiles (largely to used car buyers before the purchase) already runs some pretty clever ads on TV, so they don’t need any advice from me. But they might want to publicize this: Does the Motor Vehicle Information and Cost Savings Act (?the Odometer Act? or [...

A Supreme Editor is Needed

Posted on July 24, 2008
Mister Thorne of the Set in Style blog likes to poke gentle fun at lawyers’ writing mistakes in order to remind us that we need editors as much as anyone, even though — in fact, because — we craft words for living. In this post, he links to a legal writing website that dissects [...

What Constitutes Extrinsic Evidence that Changes the Standard of Review?

Posted on July 24, 2008
Well-established, seemingly clear principles like contract interpretation being a matter of law (absent ambiguity requiring extrinsic evidence to resolve), and de novo review of legal questions aren’t always so clear in practice. California National Bank v...

This Took Me By Surprise

Posted on July 23, 2008
When an appeal from a probate order starts by telling you that the intestate’s daughter, girlfriend of 12 years, and estranged wife all claimed portions of the estate, I’m betting most people will suspect that the opinion will be about a dispute between the girlfriend and the wife...

A Habeas Class Action

Posted on July 23, 2008
The Prison Law Office, appointed to represent a formerly pro per habeas petitioner who contended the parole board was late in hearing his case, decided to go for a brass ring by filing a class action habeas petition on behalf of all prisoners similarly situated...

It Turns Out that Your Appendix on Appeal is Quite Similar to the One in Your Abdomen

Posted on July 16, 2008
“Your appendix is a vestigial organ with no known function but it will kill you if it goes awry.” �That’s the clever moral Professor Childress of Legal Profession Blog draws from the story of the attorney who inadvertently submitted an appendix that included his margin notes commenting on the court’s prior opinion...

A Disregard for Fiduciary Duties that is ?Without Precedent?

Posted on July 15, 2008
Picture this: You represent the defendant in a lawsuit.� You don’t have time to handle his case — indeed, you admit as much on the record — and the court imposes terminating sanctions against your client for failing to respond to discovery...

It?s Now Official: It?s Not OK to Strip-Search a 13-Year-Old Girl for Ibuprofen

Posted on July 11, 2008
There was a lot of law blog coverage when a Ninth Circuit panel held that�a strip search that required�13-year-old�Savana Redding�to expose her breasts and pubic region during a search for Ibuprofen did not violate her Fourth Amendment rights.��As I wrote in my post,��despite my gut- level reaction that the search was wrong, I found the�majority [...

Patrol Cars are Traffic, Too

Posted on July 07, 2008
Image via Wikipedia In People v. Logsdon, case no. G038366 (4th Dist. May 28, 2008, ordered published June 24, 2008), the defendant contended that the officer following him on an otherwise nearly deserted street in the middle of the night lacked cause to stop his vehicle after defendant crossed several lanes of traffic without signaling...

Happy Independence Day

Posted on July 03, 2008

New Entry in ?Worst Brief Ever? Competition

Posted on July 03, 2008
I’m beginning to wonder if I should start a new blog post category for “bad briefs.” I’ve told you about the Ninth Circuit dismissing a case as a sanction for briefing deficiencies and the California Court of Appeal explaining why a poorly written opening brief made it nearly impossible to discern the arguments being [...

Keep Appealing Orders Denying Post-Conviction Motions on Jurisdictional Grounds

Posted on July 02, 2008
People v. Picklesimer, case no. C056385 (3d Dist. July 2, 2008) reminds me of one of those time travel conundrums.� You know, the ones that go something like (to pick a grisly example), “If you go back in time and kill your mother before she even gets pregnant with you, how can you ever exist [...

Mistakes in Big SCOTUS Cases? (UPDATED)

Posted on July 02, 2008
Image via Wikipedia I ran across a couple of interesting posts claiming that various SCOTUS justices got the facts just plain wrong in at least three significant cases, including two very recent ones. Make of them — both the blog posts and the mistakes — what you will...

Everyone Got It Wrong on the Deadline to Appeal

Posted on July 01, 2008
It is a critical question, and one that can occasionally confound: what is the deadline to appeal?� In Hearns v. San Bernardino Police Department, case no 05-56214 (9th Cir. July 1, 2008), neither the parties nor the trial court got it right. Believing his deadline to appeal an order dismissing his compaint had already passed, Plaintiff [...

The Ninth Offers a Party a Hint on a ?Non-Issue?

Posted on July 01, 2008
It’s hardly uncommon to see a reviewing court remanding a case to give some pointers to the trial court and even to the parties or their counsel.� But�it’s usually across-the-board advice or a warning against future misconduct. I thought the advice offered in�Duarte v...

California Attorney Fee Recovery Preempted by ADA - and a Note on Missed Issues

Posted on June 30, 2008
It’s quite common for plaintiffs to sue under similar state and federal provisions. �The disabled plaintiffs who sued under both the federal Americans with Disabilities Act and the California Disabled Persons Act in Hubbard v. Sobreck LLC, case no...

It?s not just Bill Clinton . . .

Posted on June 27, 2008
. . . who says it all depends on what the meaning of “is” is. A Ninth Circuit opinion filed today begins: “This appeal presents the single, seemingly straightforward question whether the word ‘is’ really means ‘is,’ at least as that word is employed in 25 U...

Appeal That Fee Award

Posted on June 25, 2008
I don’t usually review unpublished decisions for material for this blog..� But unpublished decisions, even if they don’t create new law, can have some interesting points.� (Just ask Bisnar | Chase.) California Attorney’s Fees has a good post, based on an unpublished decision filed last Monday, reminding everyone to appeal separately from a fee award in [...

You?re Probably Wrong about How Judges Think

Posted on June 24, 2008
Me, too, for that matter. �That’s what Judge Posner’s blurb on the jacket of his book, How Judges Think, seems to say. �It seems to me that most commentators tend to agree that judges are often inscrutable on the bench, but many who advise on legal writing seem to assume they know what the judges [...

Hyphenating Your Phrasal Adjectives?

Posted on June 23, 2008
Probably not enough, says Professor Schiess.

Offended by Having Your Work Edited?

Posted on June 18, 2008
If so, check out We Are the Products of Editing, by University of Missouri law professor�Doug Abrams, in the Missouri Bar’s quarterly magazine, Precedent. Hat tip: Legal Writing Prof Blog.

Order Removing Trustee in Ongoing Bankruptcy Proceeding is Appealable

Posted on June 18, 2008
As my first substantive post on this blog�pointed out, determining whether a bankruptcy order is appealable can be tricky. �28 U.S.C. � 158(d) gives the Courts of�Appeals jurisdiction over appeals from ?final decisions, judgments, orders, and decrees entered? either by the district�courts or the Bankruptcy Appellate Panel...

Court has No Duty During Recommitment Proceedings to Consider Suitability for Outpatient Treatment

Posted on June 16, 2008
In People v. Rish,�case no. B198727 (2d Dist. June 16, 2008), Rish appealed from�from an order recommitting him to the�California Department of Mental Health for treatment as a mentally disordered offender�pursuant to Penal Code section 2972. �He claimed that the trial court erred by failing to consider whether he was suitable for outpatient treatment, even [...

UC Davis Law Students Procure Ninth Circuit Reversal

Posted on June 12, 2008
Congratulations are in order for UC Davis law students Anjuli Fiedler and Rachel Golick who, under the supervision of UC Davis School of Law professor Carter C. White, represented and obtained a reversal for the appellant in Simpson v. Thomas, case no...

A Glitch In Kozinski?s Presiding over Obscenity Trial?

Posted on June 11, 2008
Ninth Circuit Chief Judge Alex Kozinski may be feeling a little embarrassed today. According to this piece in the Los Angeles Times, he accidentally posted materials from an obscenity trial on a publicly accessible portion of his web server that he thought was for private storage...

Justice Gilbert Profiled

Posted on June 09, 2008
Justice Arthur Gilbert, presiding justice of the Second District Court of Appeal, Division Six, was profiled in the Palisadian Post last week.� This comes not long after he was honored with The Beacon of Justice Award. Thanks to Curt Cutting of California Punitive Damages blog for the tip.

What Happens When a Criminal Defendant Dies While His Case is Pending Before the Supreme Court?

Posted on June 09, 2008
� Image via Wikipedia In People v. Arriaga, case no. S149898 (June 2, 2008), the Supreme Court explains the general scheme in a footnote: After oral argument in this case, we were informed that defendant Arriaga died on March 14, 2008. Although defendant?s death will abate his appeal (see e...

Waiver of Appeal Rights in Plea Agreements

Posted on June 05, 2008
Plea agreements often waive the right to appeal, but they aren’t always what they seem, especially when it comes to how they define the scope of the waiver. For a lesson in how to determine whether a defendant has waived the right to bring a particular appeal, check out United States v...

Survey Results ? Such as They Are!

Posted on June 02, 2008
Two weeks ago, in response to a post I’d seen elsewhere about judges reading blogs, I put up a survey in the right sidebar that asked readers to choose the description that best described them. � During that time, I posted rather lightly, and the blog had a slow few weeks: barely 1300 page views...

I?m Still Here

Posted on May 28, 2008
You wouldn’t know it from my blogging output lately, but I’m still here and will continue blogging. I happen to be moving into a new office during a heavy work week, so actually looking at the newly published cases is a real luxury right now...

Should There Be a Wrongful Incarceration/Execution Exception to Attorney-Client Confidentiality?

Posted on May 23, 2008
Professor Colin Miller at Evidence Prof Blog thinks so, and links to a draft of his essay advocating the exception. The abstract of his essay references Alton Logan, a man wrongfully imprisoned for 26 years while lawyers who knew the identity of the actual killer stood mute in order to protect client confidences: In 1982, [...

Rehearing Petition Filed in Marriage Cases

Posted on May 22, 2008
What a surprise! �A petition for rehearing was filed today in In re Marriage Cases. �The petition was filed by the�Proposition 22 Legal Defense And Education Fund, but I can’t find the petition on the web anywhere.

The Influence of the California Supreme Court

Posted on May 22, 2008
There are apparently a couple articles out there ranking California’s courts, and its Supreme Court, tops in the nation . . . whatever that means. I say “apparently” because I have to take others’ words for it. I’m way too busy to read the articles themselves...

Don?t Ask, Don?t Tell . . . and Don?t Dismiss

Posted on May 21, 2008
The military’s “Don’t Ask, Don’t Tell” (”DADT”) policy on homosexual service members is put through the wringer in Witt v. Dept. of the Air Force, case no. 06-35644 (9th Cir. May 21, 2008). The Ninth reverses the district court’s Rule 12(b)(6) dismissal of Major Witt’s complaint alleging that her impending discharge on the ground [...

Tips from Appellate Court Research Attorneys

Posted on May 20, 2008
Donna Bader at Appeal to Reason shares some briefing pointers offered by a couple of attorneys from her local appellate court. �I was glad to see a practice of mine validated: “Wondering whether to include citations to the record in the argument, rather than just the Statement of Facts? Yes, please do...

Participate in My Reader Survey, and More About Judges Reading Blogs

Posted on May 18, 2008
NOTE: This post will stay atop the blog until the morning of Monday, June 2, in order to encourage participation in the reader survey.� Until then, check for new posts below this one. Last Friday’s post about blog-reading judges got my curiosity going about who is actually reading this blog...

Judges Read Blogs

Posted on May 16, 2008
I’ve noted before some intersections between actual law practice and blogging. There was the blogging jury foreman and the blog where lawyers complained about judges, for example.� There are even some blogs by judges (look in the left sidebar)...

Remember, Don?t Be Shy

Posted on May 16, 2008
I told you last October not to be shy when you move to recover attorney fees. Steele v. Youthful Offender Parole Board, case no. C053553 (3d Dist. May 15, 2008) is the mos recent case in point. Defendant appealed from a judgment for plaintiff on a retaliation claim under the Fair Employment and Housing Act [...

Footnotes and Same-Sex Marriage

Posted on May 15, 2008
Not a pair of topics that you’d automatically put together, but bear with me . . .� Legal writing enthusiasts differ on the proper use of footnotes, and I’ve posted before about the debate.�One appellate jurist addressing my law school class advised that if a point is important enough to go in the brief, then it’s [...

In re Marriage Cases is Out . . . and the Winner Is . . .

Posted on May 15, 2008
Well, I was wondering how quickly the first blog post would go up about this morning’s California Supreme Court decision striking down California’s ban on same-sex marriage (at least that’s how I’ve seen the decision characterized — I haven’t read the 161 pages of opinions yet)...

A Conspiracy Theorist?s Delight

Posted on May 15, 2008
In In re Complaint of Judicial Misconduct, case no. 07-89012 (Judicial Council of the 9th Cir. May 14, 2008), the complainant was an attorney who was also a plaintiff in a civil action. He filed a complaint against both the district judge and the magistrate judge to whom the district judge referred the civil [...

In re Marriage Cases Opinion on the Way

Posted on May 14, 2008
The California Supreme Court filed its notice of forthcoming opinion today for In re Marriage Cases, so expect the blogosphere — legal, political, personal, financial — to be abuzz tomorrow when the opinion is filed. For anyone who’s been under a rock, here’s the summary of the cases from the Supreme Court website: Petitions for [...