Don’t give up when your motion to dismiss an appeal is summarily denied

The term “summary denial” sounds pretty bad when you are the party seeking relief. It has an air of finality. Sheesh, not even a hearing on the merits!

But a summary denial is not final in every context. This was recently pointed out in Ellis v. Ellis (2015) 235 Cal.App.4th 837, in which the respondent moved to dismiss the appeal as untimely. The court summarily denied the motion. After the appeal was fully briefed, however, the court advised the parties to be prepared to address the timeliness of the appeal at oral argument, heard argument, and ultimately granted the motion. While I am sure the respondent would have preferred such a ruling prior to briefing the appeal on the merits, I doubt he minded too much that he was put through that time and expense. A win is a win.

At the point in its opinion that it mentioned its summary denial, the court added this footnote: “Of course, a summary denial of a motion to dismiss an appeal does not ‘preclude later full consideration of the issue, accompanied by a written opinion, following review of the entire record and the opportunity for oral argument.’ [Citations.]”

Of course? Maybe people steeped in appellate procedure are familiar with this principle, but I think it would come as a surprise to most people. Now you know, and now you, too, can say of course.

How the nature of your appellate challenge can affect whether your appeal is dismissed for failure to obey trial court orders

The disentitlement doctrine allows a court of appeal to dismiss an appeal as a sanction for the appellant’s refusal to comply with trial court orders that remain in force while the appeal is pending. The lesson to be learned from today’s decision in Ironbridge Global IV, Ltd. v. ScripsAmerica, Inc., case no. B256198 (2d Dist., June 30, 2015) comes from its discussion of how the right kind of appellate challenge to a trial court order — specifically, a jurisdictional challenge — can serve as a defense to the imposition of a dismissal sanction under the disentitlement doctrine. Unfortunately, for the defendant-appellant here learns that calling a challenge a jurisdictional one does not make it so. The Court of Appeal characterizes the defendant’s challenge as a non-jurisdictional one, and dismisses the appeal for the defendant’s violation of the trial court order from which it appealed.

A settlement reached by the parties required defendant to issue plaintiff shares in the defendant corporation, and to issue plaintiff additional shares in the event the value of the shares decreased. The court approved the stipulation and retained jurisdiction to enforce its terms. About six months later, plaintiff applied ex parte for an order compelling the defendant to transfer additional shares to plaintiff and enjoining defendant from issuing shares to anyone else until it until it did so. The court ordered defendant to issue the additional shares within 24 hours and not to issue shares to anyone else until it complied.

In the defendant’s appeal, plaintiff moved to dismiss under the disentitlement doctrine, providing SEC filings showing that defendant had transferred more than 8 million shares to third parties in violation of the injunction. Defendant filed a “paltry” 1-1/2 page opposition to the motion citing “no authority whatsoever,” contending that the order was in excess of the trial court’s authority in that (1) the trial court could not enjoin issuance of shares to third parties because there was no such prohibition in the settlement, and (2) the court could not compel the issuance of shares to plaintiff on an ex parte basis.

The Court of Appeal isn’t buying it. The court acknowledges that “[a] person may refuse to comply with a court and raise as a defense to the imposition of sanctions that the order was beyond the jurisdiction of the court and therefore invalid,” but notes also that a person “may not assert as a defense that the order merely was erroneous.” (Internal quotations and citations omitted.) It finds that the defendant’s challenge falls into the latter category.

First, the court notes that a trial court has continuing power to enforce a stipulated  judgment entered in settlement of a case (Code Civ. Proc., § 664.6) and the power to “compel obedience to its judgments, orders, and process” in proceedings before it (Code Civ. Proc. § 128, subd. (a)(4)). Combined, those powers gave the trial court “authority to fashion orders to enforce compliance with a stipulated judgment.” Though the court does not state so explicitly, its point seems to be that the prohibitory injunction against issuance of shares to third parties was was a permissible coercive measure to enforce the settlement regardless of whether the stipulated judgment addressed such transfers.

The defendant’s challenge to the ex parte nature of the order is dispatched more easily. The settlement itself authorized the court to enforce the settlement on an ex parte basis.

Here, the parties requested that the court retain jurisdiction to enforce the settlement. The stipulation also provided that it could be enforced on an ex parte basis. There is no question that the court had jurisdiction over the parties and the subject matter, and that the parties expressly authorized the court to enforce the settlement on an ex parte basis. We find no procedural irregularity or other defect that would support a credible claim that the order was either void or voidable. Defendant’s appeal merely challenges the order as erroneous.

The lesson here, of course, is that if you are unable or unwilling to comply with a trial court order that remains in force pending an appeal from it, you had better be sure that you have a serious jurisdictional challenge to make against it. Do not convince yourself that your challenge on the merits is a jurisdictional one just because you do not want to obey the order, because the Court of Appeal will look beyond the label on your argument. Absent a solid jurisdictional challenge, disobedience of the trial court order can put your entire appeal at risk.

No judicial notice for a law of physics, but for a different reason than you might expect

I had to take the “high track” physics courses as part of my electrical engineering major curriculum at Canoe U. In fact, I liked my physics classes more than my engineering classes, and regret to this day I did not major in physics. So the discussion in Bermudez v. Ciolek, case no. G049510 (2d Dist., June 22, 2015), in which the court refuses to take judicial notice of a law of physics, caught my eye.

Bermudez is an automobile accident case, in which defendant Ciolek was the driver of a car that collided with a second car driven by defendant Heacox, which in turn struck plaintiff, who was on the sidewalk. Though the jury found both drivers negligent, it found only Ciolek liable for plaintiff’s damages.

Ciolek contended on appeal that these findings were inconsistent, i.e., that Heacox’s neglignce must have been a substantial factor in causing plaintiff’s injuries because, absent such negligence, the second vehicle’s ricochet would have been different. Ciolek contended, in the words of the court, that the jury’s findings were irreconcilable “because they ignore the laws of physics by which our universe is governed.”

In support, Ciolek requested that the court take judicial notice of the law of conservation of momentum. Here is an apparent excerpt from Ciolek’s brief, which attached equations and examples:

The law of conservation of momentum provides that in a collision, momentum is conserved; the combined momentum of two colliding objects going into the collision must equal the momentum coming out of it. The momentum of an object equals its mass multiplied by its velocity; velocity is a vector, which in turn is composed of both speed and direction.

Here is a simple demonstration of the principle:

Instinctively, how this principle would have affected the collision sounds like expert witness territory to me. Sure enough, the lack of expert testimony on the issue at trial plays a part in the court’s decision not to take judicial notice, but the basis for its ruling is far more fundamental and needs to be kept in mind by every appellant . . . and you don’t need to know a lick of physics to understand it:

Ciolek’s argument is certainly interesting. Of course, it is not the argument she made at trial. At trial, she claimed Heacox was the sole cause of the collision (and therefore the harm to Bermudez). Ciolek did not ask the trial court to take judicial notice of the law of conservation of momentum and to instruct the jury on its meaning. Ciolek did not ask her accident reconstruction expert to evaluate and opine on the effect of Heacox’s speed on the ricochet. [Footnote.] Faced with a result she did not expect (though it was consistent with the result requested by Bermudez’s counsel and Heacox’s counsel in their closing arguments), Ciolek now suggests the jury reached an illogical verdict based on the supposed common sense of the law of conservation of momentum.

We reject Ciolek’s request to essentially retry the case on appeal and we deny her request for judicial notice as irrelevant to the issues before us. “It is a firmly entrenched principle of appellate practice that litigants must adhere to the theory on which a case was tried. Stated otherwise, a litigant may not change his or her position on appeal and assert a new theory. To permit this change in strategy would be unfair to the trial court and the opposing litigant.” (Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316.) It would be fundamentally unfair to both Heacox and Bermudez to grant a retrial to Ciolek because she wants the chance to try a different theory the second time around.

In short, shifting gears at the appellate level is not allowed. It’s surprising that Ciolek would make an argument like this, given that the appellate court did not even deem this a close call.

My blog post on reading briefs from a screen is now an article (and welcome, Citations readers!)

Your humble appellate blogger working on his next article

A special welcome to anyone arriving here after reading my article in the June issue of Citations, the Ventura County Bar Association’s monthly publication. Maybe “iPad Judges are Not Such a Good Idea is my adaptation of my post last month of the same name, citing studies showing that readers tend to comprehend and retain material better when reading from paper than from a screen. (The article is also scheduled to run this month in the Appellate Law Journal from Counsel Press.)

I’ve since posted some comments on a related issue: whether laptops help or hurt students in the classroom.

It is about time I get back to blogging about the law. Don’t be a stranger!

(By the way, if you still have your paper copy of Citations, make sure you check out the back cover. [No, it's not about me.])

The blog will be down for maintenance starting later today

I’ll be taking the blog offline some time this afternoon or this evening to update some of the software on the back end. I don’t know if it will be down for a few hours or a few days — it all depends on how smoothly things go. Wish me luck and pray that I don’t hopelessly screw everything up.

Does classroom laptop use inhibit law school learning?

A few weeks ago, I wrote about whether it was a good idea for judges to read appellate briefs on iPads or other screens, pointing out studies regarding decreased comprehension and retention reading from a screen compared to reading from paper. Thus, it does not surprise me at all that use of laptops in classrooms (especially law school classrooms) has some serious implications for learning. Take a look at this abstract of The Dynamics of the Contemporary Law School Classroom: Looking at Laptops Through a Learning Style Lens, by Regent University law professor Eric A. DeGroff:

The Millennial Generation is at ease with modern technology and with juggling multiple tasks. Many of them, however, come to law school less prepared in other ways for the rigor of legal education. Their learning styles, visual orientation, short attention spans, and previous learning experiences make them less suited for the focused and reflective thinking that are critical to learning legal analysis and linear reasoning. Research strongly suggests that some learning styles are more compatible than others with the discipline of analytical thinking and the demands of legal education. Students with learning styles less compatible with law school expectations face significant challenges even under the best of circumstances. This article suggests that the use of laptops in the classroom may exacerbate the challenges these students already face.

The article addresses the laptop issue in the context of learning styles and the dynamics of the learning process. It briefly discusses the history of the laptop issue, traces a significant body of research over the last several decades documenting the distracting effect of laptops even when used in connection with classroom activities, and presents the results of the author’s experimentation with a no-laptop policy in his first-year Property course. The author does not suggest removing laptops from the law school experience entirely, but recommends that professors of first-year doctrinal courses consider the adoption of a no-laptop policy for their classes.

When I saw that abstract in my Social Science Research Network email update, I was reminded of a Washington Post article I read more than five years ago: “Wide Web of diversions gets laptops evicted from lecture halls.” The article noted that some professors (including law school professors) had banned laptops from their classrooms, mostly because of the diversions that WiFi access created:

Wireless Internet connections tempt students away from note-typing to e-mail, blogs, YouTube videos, sports scores, even online gaming — all the diversions of a home computer beamed into the classroom to compete with the professor for the student’s attention.

“This is like putting on every student’s desk, when you walk into class, five different magazines, several television shows, some shopping opportunities and a phone, and saying, ‘Look, if your mind wanders, feel free to pick any of these up and go with it,’ ” [Georgetown law professor David] Cole said.

As readers of my “iPad judges” post may suspect, though, I think the problem goes far beyond the diversions presented by a WiFi-enabled laptop. As the abstract to Professor DeGroff’s article points out, the technology generation may be arriving at law school with shorter attention spans, suggesting that the technology created problems long before the students ever arrived on campus. But where I think the WaPo article really hits the nail on the head is with this observation (my emphasis):

Cole has banned laptops from his classes, compelling students to take notes the way their parents did: on paper.

***

Cole surveyed one of his Georgetown classes anonymously after six weeks of laptop-free lectures. Four-fifths said they were more engaged in class discussion. Ninety-five percent admitted that they had used their laptops for “purposes other than taking notes.”

Even when used as glorified typewriters, laptops can turn students into witless stenographers, typing a lecture verbatim without listening or understanding.

I did quite well in law school, and I remember going minutes at a time in classes without writing anything down, because I realized the value of the class was in the give-and-take of the “Socratic Method” dialog that I so relished (yet so many of my classmates loathed and feared).* After some meaningful dialog, I was able to distill key points and limit my notes accordingly.

In other words, I actually thought during class. I hope students are still doing that.

_______________________________

*Not everyone is enamored of the Socratic Method.

DigitalDemocracy.org: an experiment in legislative transparency

Imagine if you could go to a website, type in a term, and find every mention of that term in hearings in the California legislature . . . and not only that, but have the site take you directly to video of the hearing with a rolling transcript and information on legislators and lobbyists. That would be pretty cool, right?

One-week old DigitalDemocracy.org does that:

Try it out! I searched for “vape” to find testimony and argument regarding proposed regulation of e-cigarettes, and turned up testimony from representatives of the Smoke-Free Alternative Trade Association and Mount Sinai School of Medicine . . . plus argument from a bunch of dang politicians.

Speaking of dang politicians, the project was spearhead by partners from opposite sides of the political aisle: Democrat Lieutenant Governor Gavin Newsom and Republican former state Senator Sam Blakeslee.

Don’t get too excited that this will revolutionize your research of legislative history, though. At least, not yet. As of now, the site is only a one-year beta covering only the 2015 legislative year.

Besides, the ability to search legislative history doesn’t seem to be the point. The purpose seems to be to make government more transparent and to give ordinary citizens a window into the legislative process that will allow them to act on issues currently under consideration. (Recent coverage in my local paper includes this article and this column from the paper’s Sacramento correspondent, which give one a feel for the purpose of the project.)

However, if DigitalDemocracy.org carries on past its one-year beta period and maintains its full catalog, I think it will become a valuable tool for legislative history research. It does, after all, also catalog reports, analyses, and drafts of bills (example here) that are available from official sites like Official California Legislative Information or California Legislative Information. The hearing videos and transcripts make those official sites seem awfully dry.

Maybe “iPad Judges” aren’t such a good idea?

I’m no Luddite. I own a PC, a Macbook, an iPad, an iPhone, and a Kindle. (I’m not in the market for an Apple Watch, though.) Yet, I’m not thrilled that more and more judges (supposedly) are reading briefs and reviewing appellate records on iPads and other electronic devices.

The issue was brought to mind today by a lively exchange on the Los Angeles County Bar Association listserv for the Appellate Courts Section. The discussion is about the technical requirements for electronic filing or submission of briefs, petitions, exhibits, etc. in the Court of Appeal. There is predictable grumbling over the inconsistency in the rules from district to another, but mostly the discussion is over the page numbering requirements, which are designed to make sure that the page number of a PDF file corresponds to the page number of the physical document. Here’s how appellate attorney Robin Meadow of Greines, Martin, Stein & Richland, LLP, helpfully and succinctly explained it (my emphasis):

To elaborate a little:  This is all about reading briefs on-screen. PDF programs, whether on computer or tablet, allow you to specify a page to go to, but as Ed notes this is always the page of the PDF.  Under the old system, page 20 of a brief is something like page 30 of the PDF, because the PDF numbering includes the cover page, certificate of interested parties, TOC and TOA.  So, you have to guess at the page number to put in, or count the initial pages and then calculate the PDF page number every time.  Under the new system, there is one and only one page 20, whether you’re looking at a paper copy or the PDF.

Aside from court-imposed rules, there have been several articles about how to best prepare documents to be read by appellate justices on an iPad or other electronic device. A few months ago, Appellate Law Journal from Counsel Press (that is just a reference, not an endorsement) led me to another article on how best to format briefs for reading on tablets: Maximizing Your Appellate Brief for the iPad. That post references the Columbia Business Law Review article that I wrote about in January of last year. I will be the first to admit there are some advantages to having a text-searchable brief, but does that come at a cost?

Consider this summary of a Norwegian study at Science Nordic:

Neo-Luddites rejoice: numerous studies show that when you read a text on paper your understanding is deeper and longer lasting than if you read that same text on a computer.

Of course, if you read the text on a screen you can probably recount what you read. But you cannot as readily make use of the content in other contexts. You haven’t comprehended it as deeply and assimilated it as substantially.

Digital information isn’t just a fleeting phenomenon on your computer screen. It disappears more quickly from your memory, too. Screens are best for superficial and speedy reading.

I have felt this intuitively for some time, so I avoid doing extended reading on screen when comprehension and retention are necessary. For perusing blogs or short letters, my iPad is fine. It also suffices for novels and other lengthy leisure reading. But if I need to read a brief or a case or something else that makes comprehension and retention important, I print it out and read it off the paper, marking it up with a pen as I go. Call me a tree-killer, but I’m not about to give up this practice. I’ve tried reading PDFs on my screen and annotating them with PDF editing software as I go along, but it’s just not the same for me. I’ll stick with reading from paper; the  electronic file is always available if I need to search for something in the original text (though it’s no help in searching my notes, or course).  I wonder how many of our appellate justices feel the same way. (I hope none of the justices ever says to me at oral argument, “So, Mr. May, I read your brief on my iPad. You got a problem with that?”)

Getting back to the study: I am curious whether the study looked only at persons old enough to have grown up reading off the printed page. Perhaps today’s youth, who may have done a majority of their reading from screens, will develop so that they actually read better from a screen than from a printed page.

In a viral YouTube video [see below] from October 2011 a one-year-old girl sweeps her fingers across an iPad’s touchscreen, shuffling groups of icons. In the following scenes she appears to pinch, swipe and prod the pages of paper magazines as though they too were screens. When nothing happens, she pushes against her leg, confirming that her finger works just fine—or so a title card would have us believe.

The girl’s father, Jean-Louis Constanza, presents “A Magazine Is an iPad That Does Not Work” as naturalistic observation—a Jane Goodall among the chimps moment—that reveals a generational transition. “Technology codes our minds,” he writes in the video’s description. “Magazines are now useless and impossible to understand, for digital natives”—that is, for people who have been interacting with digital technologies from a very early age.

That’s a cute anecdote — or a horrifying one, depending on your perspective — but despite that introduction, the subhead of that piece at Scientific American notes that “research suggests that reading on paper still boasts unique advantages” over reading on a screen, and describes them in ways that suggest the printed page is advantageous even for those raised reading from screens.

For more articles and commentary on the subject, click here.

Update: I re-drafted this post as an article.

A break for some shipmates and a lesson on drilling down on the standard of review

As a graduate of the “Boat School” (or “Canoe U”), I went on alert as soon as I spotted a case in yesterday’s advance sheets regarding whether some local county employees’ time as U.S. Naval Academy Midshipmen (don’t call them “middies”) could enhance their county retirement credits. My shipmates came out on the winning end of things, and the opinion offers a lesson on appellate procedure.

The issue in Lanquist v. Ventura County Employees’ Retirement Association (case no. B251179, 2d. Dist., March 16, 2015) is succinctly stated in the first paragraph of the opinion:

Ventura County Employees’ Retirement Association (VCERA) permits employees to purchase retirement service credit for time spent in military service. It excludes time spent as a midshipman at the United States Naval Academy (Academy).Our interpretation of a Ventura County Board of Supervisors’ resolution, adopting the County Employees Retirement Law (CERL), leads us to the opposite conclusion.”Military service” includes service as a midshipman.
The journey for the plaintiff employees started with their applications to purchase credits for their time at the Academy, then wound through assorted administrative proceedings that denied their applications. The plaintiffs filed a petition for writ of mandate in the superior court, which denied the petition.

On the ensuing appeal, the trial court’s decision is reviewed de novo. That does not mean, of course, that the underlying administrative decision is likewise reviewed de novo. De novo review of the trial court’s decision means that the appellate court has to put itself in the shoes of the trial court and review the administrative decision under the standard of review that the trial court was required to apply. Normally, review of such a quasi-legislative administrative body’s decision is limited to whether the decision  was “arbitrary, capricious, lacking in evidentiary support, or contrary to procedures provided by law.” (Citations omitted.) But here, the plaintiffs got a break from the fact that the administrative body had construed a statute rather than exercise discretionary rule-making power. Thus, the ruling was subject to heightened review: “We tak[e] ultimate responsibility for the construction of the statute, [but] accord[] great weight and respect to the administrative construction.” (Citation and internal quotation marks omitted.) Under that level of scrutiny, the administrative body’s interpretation of the statute did not hold up, and the plaintiffs’ time as midshipmen was held to be subject to the retirement service credit purchase scheme.

That’s a welcome surprise, given that time for service at the Academy is not counted toward time in service for purposes of calculating military retirement pay for retiring officers. Presumably, the federal statutes cited by the court in its analysis apply with equal force to graduates of other service academies and thus former Zoomies, Woops, and Coasties working for Ventura County are likewise eligible for this program.***

The larger lesson to be drawn is that one should not be automatically discouraged by the default standard of review. Take a careful look at the case to see if a more favorable standard of review can be invoked. And kudos to these plaintiffs, both of whom were self-represented but only one of whom is an attorney.

***Believe me, use of these nicknames is all in good fun — there is a healthy respect for each other among the academies, but the good-natured rivalries among them can make it look otherwise. Stanford-Cal, Alabama-Auburn, and other college rivalries have got nothing on Army-Navy. Go Navy! Beat Army!

Do longer briefs correlate to success for Appellants?

I cannot think of a single writing seminar I have attended or book I have read that did not emphasize succinctness. Now comes a paper published at the Social Science Research Network, “Too Many Notes”? An Empirical Study of Advocacy in Federal Appeals (download link),which, if this excerpt from the abstract is any indication, appears to raise a statistical challenge to that line of thinking, at least in the Ninth Circuit:

Given the central role of written briefs in the process, we should examine seriously the frequent complaint by appellate judges that briefs are too long and that prolixity weakens persuasive power. In a study of civil appeals in the United States Court of Appeals for the Ninth Circuit, we discover that, for appellants, briefs of greater length are strongly correlated with success on appeal. For the party challenging an adverse decision below, persuasive completeness may be more important than condensed succinctness. The underlying cause of both greater appellant success and accompanying longer briefs may lie in the typically complex nature of the reversible civil appeal. In light of our findings, the current proposal to reduce the limits on number of words in federal appellate briefs may cut more sharply against appellants.

Every opening brief presents a struggle between “persuasive completeness” and a “condensed succinctness.” The ideal opening brief, of course, is complete and succinct. Sometimes, that can be accomplished, but not always (just ask Jeff Skillings’s lawyers), and maybe not even often, especially if one measures succinctness in absolute terms. But aside from rule-imposed limits, I think the the length of a brief has to be judged relative to its completeness — the number of issues raised and how complex the issues are. A brief of 7,000 words may be quite verbose if it raises only one or two simple issues, while a brief of 14,000 words may be a concise presentation of far more numerous and complex issues.

Update: the article has triggered this discussion thread at LinkedIn.

Can your trial judge give you a boost toward getting appellate review of a non-appealable order?

In theory, at least, the answer is yes, in some circumstances, by certifying the non-appealable order pursuant to Code of Civil Procedure section 166.1. Yesterday’s opinion in Audio Visual Services Group, Inc. v. Superior Court, case no. B256266 (2d Dist., Jan. 22, 2015) is a reminder that this tool for obtaining early appellate review is at the disposal of parties aggrieved by a non-appealable order and reluctant to petition for writ relief because of the generally long odds against having a writ petition heard on the merits.

Section 166.1 provides:

Upon the written request of any party or his or her counsel, or at the judge’s discretion, a judge may indicate in any interlocutory order a belief that there is a controlling question of law as to which there are substantial grounds for difference of opinion, appellate resolution of which may materially advance the conclusion of the litigation. Neither the denial of a request for, nor the objection of another party or counsel to, such a commentary in the interlocutory order, may be grounds for a writ or appeal.

Audio Visual Services Group cites Lauermann v. Superior Court (2005) 127 Cal.App.4th 1327, 1330, fn. 6: “The intent is evidently to encourage the appellate court to review the issue on the merits if the losing party files a petition for extraordinary relief.”

Why do I qualify my answer to the the question posed in the title of this post? It is because I wonder how often such certifications actually convince the appellate court to review a petition on the merits when it would not have done so otherwise. After all, every writ petition tries to convince the court that the particular circumstances are “special” enough to warrant appellate review, frequently citing the same factors stated in section 166.1 (particularly when it comes to orders overruling demurrers or denying summary judgment or summary adjudication).

So, does the concurrence of the trial judge offer any real assistance? It is a question I will pose in future discussions with appellate justices. But until then, my approach is that it sure can’t hurt.

If you think your case has been helped or hurt by a section 166.1 certification, let me know in a comment to this post.

Update: AAAArrrggghhh! I cannot get comments opened up in Wordpress at the moment. No matter how many times I change the setting, comments remain closed. But I would still like to hear from you if you have experience with section 166.1 influencing your case. Email me at gregATgregmaylaw.com. I will update the post, as appropriate, to reflect your experience.

Don’t lightly assume that you’ve extended your time to appeal with a post-trial motion

The parties in your case have stipulated to have their case tried before a temporary judge (pursuant to Cal. Const., art. VI, § 21) and filed all trial-related papers (trial briefs, closing briefs, and requests for statement of decision) directly with the temporary judge at his alternative dispute resolution service.

So, where should you file your motion to vacate the judgment under Code of Civil Procedure sections 663 and 663a? The answer is: with the clerk of the superior court. (As all documents should be, pursuant to Cal. Rules of Court, rule 2.400(b).)

The appellant in Gonzalez v. Aroura Loan Services, LLC, case no. B247366 (2d Dist., Nov. 17, 2014) learned that lesson the hard way, but not through having its motion to vacate denied. In fact, the judge never even ruled on the motion. But the appellant suffered another consequence from filing its motion to vacate directly with the temporary judge instead of with the clerk of the superior court. Its appeal was dismissed as untimely because the improperly filed motion to vacate did not trigger the extension of time to file the notice of appeal described in rule 8.108(c), California Rules of Court.

Rule 8.108(c) extends the time to appeal whenever a party files “a valid notice of intention to move — or a valid motion — to vacate the judgment.” (Emphasis added.) The court held that the motion to vacate filed directly with the temporary judge was not valid because section 663 directs that the moving party ” shall file with the clerk and serve upon the adverse party a notice of his or her intention, designating the grounds upon which the motion will be made[.]” (Emphasis added.) Thus, the rule 8.108(c) extension was never triggered. Without that extension, the appellant’s notice of appeal was untimely.

I cannot emphasize enough how critical it is that a party file its notice of appeal on time. Gonzalez has more to say on this broader topic, which I will save for another post.

New blog to cover California Supreme Court

I received an invitation yesterday afternoon to attend a reception to celebrate the launch of a new blog “focused on providing substantive coverage of issues concerning the Supreme Court of California,” and billed as a joint project of the California Constitution Center at Berkeley Law and the Hastings Law Journal: SCOCAblog.

I don’t know if I was randomly chosen for an invitation or I was invited because I am a blogger on appellate issues. It’s nice to think it is the latter, and to think that maybe if I throw a link or two to SCOCAblog from time to time, the bloggers there might return the favor.

Oddly, yesterday I wasn’t able to find any trace of news about the impending launch other than what is contained in my invitation. I found nothing about it at the website for either of the endeavor’s partners, and going to SCOCAblog.com in a web browser brought up the same generic page brought up for any other inactive URL; there was no “coming soon,” “under construction,” or other message hinting that SOCAblog was on its is way. You would have thought it was a big secret.

This morning is a different story. Though yesterday’s invitation announced a launch date of November 24, 2014, the blog appears to have launched ahead of schedule.

What can Ernest Hemingway teach you about legal writing?

Hemingway portrait

Ernest Hemingway

In a Wall Street Journal article last month, “Why Adverbs, Maligned by Many, Flourish in the American Legal System,” Ernest Hemingway is cited twice as an example of an effective writer who eschewed adverbs. This colorful start to the article expresses the view of many lawyers:

No part of speech has had to put up with so much adversity as the adverb. The grammatical equivalent of cheap cologne or trans fat, the adverb is supposed to be used sparingly, if at all, to modify verbs, adjectives or other adverbs. As Stephen King succinctly put it: “The adverb is not your friend.”

In large part, the article explains the need for adverbs in legislation and notes the significance they can have in the construction of a statute.

Bryan Garner, editor of Black’s Law Dictionary, is regarded by scholars as the dean of legal prose. He says legislators and adverbs need one another.

***

Says Mr. Garner: “No legislative drafter ever says: Did I pull my readers in? That’s something Stephen King has to ask.”

Ah, back to that age-old rule: know your audience when you are writing. (More on what the article teaches about that at the product liability blog Abnormal Use.) The article moves on to the more contentious issue of the use of adverbs in persuasive writing and the use of adverbs by judges:

“When you’re drafting an opinion, it’s just so tempting to use an adverb, so satisfying. It says exactly what you mean,” Alex Kozinski, chief judge of the Ninth U.S. Circuit Court of Appeals, said. “I don’t think any of us can follow the rule as religiously as Hemingway did. I wish I could.”

Unlike his peers, Justice Antonin Scalia is unapologetic. One legal linguist marveled at his “caustic exploitation” of adverbs in his opinions, which crackle with phrases like “blatantly misdescribes,” “most tragically” and “judicially brainstormed.”

Unsurprisingly, the participants in a LinkedIn thread that started with a reference to the article tended to concentrate on the use of adverbs in persuasive writing, and expressed their overall disdain for adverb use. There was general agreement that adverbs like “clearly,” “obviously,” and the like signaled weak arguments. The article offers statistical support for that view, with a caveat (again, relevant to the “know your audience” maxim):

According to a 2008 study by two scholars at the University of Oregon School of Law and Brigham Young University, lawyers who stuff so-call intensifier adverbs in their legal briefs—words such as “very,” “obviously,” “clearly,” “absolutely” and “really”—are more likely to lose an appeal in court than attorneys who avoid those “weasel words,” as Mr. Garner described them. But notably, the study found that the habit can actually work in a lawyer’s favor if the presiding judge really likes to use those adverbs, too.

Which leads me back to Hemingway. In the LinkedIn thread, California attorney Steven Finell praises Hemingway for more than just adverb avoidance, crediting him for precise writing without adverbs and using adverbs effectively: “Lawyers can learn a lot from reading Hemingway: short sentences, powerful verbs and nouns–and descriptive adverbs and adjectives.” Finell’s post provides great examples of precise adverb-free writing.

I’ve never read Hemingway. I might give him a try.

How to make your mediation brief effective

There are some big differences between appellate mediation and mediation while your case is still pending in the trial court. But appellate and trial lawyers can both benefit from reading mediator Rande Sotomayor’s excellent article, “Effective Mediation Briefs,” in this month’s California Lawyer. I know Rande through my networking group, The Esquire Network (there’s my full disclosure), and have seen her present on other topics. I know her to be a very thoughtful mediator, and it shows in this article.

What I found particularly persuasive was her advice that lawyers should get over their penchant for keeping the entirety of their mediation briefs confidential:

Many lawyers submit “confidential” briefs to the mediator, hoping to avoid premature disclosure of their position. But if the brief is confidential, how can the information impress the folks sitting across the table?

A productive strategy is to deliver the message ahead of time, thereby promoting a worthwhile – and mutual – premediation evaluation of the case.

This approach conveys not only your (hopefully) winning arguments, but also what it will take to persuade your client to settle. Sharing a thoughtful brief in advance also allows everyone to discover unanticipated areas of agreement. Then, the parties can drill down to the real areas of disagreement at the heart of their dispute.

A lot of lawyers are going to have a problem with this advice, out of fear that the adverse party will approach the mediation as a chance to learn how best to manage the case rather than as a meaningful effort toward settlement. You can mitigate the chances of this by making your mediation brief effective in other ways (more tips on that in the article).
Lawyers may likewise fear tipping off the other side even if they are confident the other side is engaging in mediation in good faith. But is there any real danger here? Any opposing counsel worth his salt is going to figure out the bulk of your strategy anyway, either through papers filed during the course of the litigation or through effective discovery:
An interrogatory is not objectionable because an answer to it involves an opinion or contention that relates to fact or the application of law to fact, or would be based on information obtained or legal theories developed in anticipation of litigation or in preparation for trial.

(Code Civ. Proc., § 2030.010, subd. (b).) Similar information can be obtained through requests for admissions. (Code Civ. Proc.,  § 2033.010.) Unless you plan to stonewall or be cagey in discovery — or your opposing counsel is not sharp enough to utilize all the discovery tools at his disposal — you are not going to keep your strategy a complete secret anyway.

I think the advice to disclose one’s position goes double for appellate mediation, especially for the appellant. The appellant might have been on an equal footing with the respondent during the trial court proceedings, but with statewide reversal rates hovering around 20%, the appellant starts out as a huge underdog in the appeal.  The appellant’s most important task during the mediation is to convince the respondent that the appellant’s chances of succeeding are far higher than that 20% average. An appellant can’t do that without disclosing at least some of his strategy. I don’t worry about giving the respondent additional lead time to consider those arguments before my appellant’s opening brief is filed. The easy availability of extensions and the “grace period” for filing the respondent’s brief is going to give the respondent plenty of time in any event.

Rande’s piece has a lot of great tips. Read it for advice on how to communicate with the mediator and the adverse party, through your mediation brief and otherwise.

Opposing the pro se appellant

I think a lot of people might think that any time the appellant is a lay person representing himself (i.e., appearing “pro se”), the respondent has a pretty easy time of it. Is that the case?

I was reminded of this issue by an article on pro se plaintiffs in the Daily Recorder (subscription only link) titled “Pro Se Suits No Picnic for Defense Lawyers,” which described the difficulties of litigating against pro se plaintiffs at the trial court level. I think some of those difficulties can carry on through appellate proceedings, but overall I think a defendant-respondent in the court of appeal has an easier job opposing a pro se plaintiff-appellant in the Court of Appeal than the defense lawyer has in the trial court.

First, let’s look at how the article characterized suits brought by pro se plaintiffs: “Suits filed by the unlawyered are often frivolous. Some allege outlandish conspiracy theories, while others fail to make a recognizable legal claim.” None of that is likely to get any better by the time the case reaches the Court of Appeal (except, perhaps, where the pro se plaintiff has successfully amended the complaint to state a cognizable cause of action). The appellant’s opening brief may likewise be frivolous and a conspiracy theorist’s dream, but on appeal, there is an extra tool to combat those characteristics: the standard of review, which can often render irrelevant whole swaths of argument devoted to contested versions of the facts.

The article goes on to note that suits brought by pro se plaintiffs can be lengthy and costly because such plaintiffs are usually unwilling to settle and the trial court gives the pro se plaintiff leeway in complying with the rules of court that the court would not grant to a represented litigant. I have not seen either of those factors affect an appeal much.

Settlement on appeal is not unheard of, but it is far less frequent than in trial court in any event (it is not even always discussed), so a particularly stubborn plaintiff is not likely to skew settlement statistics in appellate proceedings. In fact, a pro se plaintiff-appellant might even be more willing to settle on appeal (and for a nuisance value) than he was in the trial court if he can be made to realize that the reversal rate is less than 1-in-5.

I haven’t seen pro se appellants given extra leeway, either (though I am always sure to cite case authority stating that they should not be given any). While it is true the Court of Appeal will make sure that pro se appellants get a fair shake, that approach usually manifests itself not in granting leniency with rule compliance, but in giving the the pro se appellant a respectful hearing, even where it is obvious he is wasting the court’s time. There are usually so few procedural steps in an appeal that there are few occasions for the appellant to invoke leniency in any event. The closest I ever saw was a pro se appellant who moved for leave to file an opening brief of nearly 50,000 words — the length of a short novel, and more than three times the usual limit. She was denied relief.

I think one of the biggest challenges in opposing pro se appellants can be to decipher their arguments. Briefs I have seen from pro se appellants (not always in cases in which I represent the respondent) tend to be long-winded, repetitive, and convoluted. A respondent must spend a good deal of time untangling the opening brief to clarify the arguments being made before starting on the respondent’s brief. If a respondent forgoes that initial analysis, he risks drafting a respondent’s brief that is likewise wordy, repetitive, and convoluted — at least in its first draft.

I can’t quantify this next point or offer any specific evidence for it (other than the anecdotal evidence in the article of pro se plaintiffs’ general unwillingness to settle), but I believe that pro se appellants are far more likely than represented appellants to appeal for reasons so personal and important to them that they are blinded to the realities of an appeal. Thus, I think they are more likely to pursue frivolous appeals, make arguments that don’t take into account the standard of review (even if they are familiar with the concept of a standard of review), and even appeal in situations where success could make them worse off.

All that said, one should resist the temptation to think that all pro se appellants are doomed to failure. Sometimes, they win, even against big companies with top-notch representation.

Doesn’t anybody read the rules?

When is a brief written by a lay person likely to be of comparable quality to a brief written by lawyer for the other side in the same case? When both briefs stink:

Brooks’s opening brief on appeal includes a statement of facts without any citation to the record. In the argument portion of the brief, references to facts are occasionally, but not consistently, supported by citations to the record. ECG’s respondent’s brief, which relies extensively upon facts developed at trial, does not include a single citation to the record. The failure to include citations to the record violates rule 8.204(a)(1)(C) of the California Rules of Court: Briefs must “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” Although these failures subject the briefs to being stricken, we have elected to disregard the noncompliance. (Cal. Rules of Court, rule 8.204(e)(2)(C).)

(In re Marriage of Brooks and Robinson (2008) 169 Cal.App.4th 176, 180 fn. 1.) Maybe stink is a strong word. It’s possible the briefs made excellent points and were terrible only in their failure to comply with the rule requiring citations to the record. But still . . . the odds that neither side would comply with such a basic rule strike me as being quite low. Here, one of the parties (Brooks) was self-represented, but I’m betting that somewhere out there are cases with lawyers on both sides of the appeal filing non-conforming briefs.

This sounds like the beginning of a pitch urging you to employ an appellate attorney, doesn’t it?

You know what I do when I have a question about procedure? This is a really radical concept for some . . . I look up the applicable rule. You don’t have to be a rocket scientist — or even an appellate lawyer — to realize that’s a good idea.

When winning is risky

Sometimes, an appeal doesn’t make sense to me. This can be true even if there are better-than-average odds of winning. When an appeal doesn’t make sense to me, I ask why the party wants to appeal. I’m sure that most of the time, the reaction is to think, “Isn’t it obvious? Because I lost!” But to my mind, that’s not always a good enough reason. As a matter of effective client relations, I get curious about motives when it seems to me, as an outsider, that a win on appeal would yield a negligible benefit or even risk making the appellant worse off.

An example of the latter situation is Department of Fair Employment and Housing v. Ottovich, case no. A136607 (1st Dist.  June 30, 2014), where I think the appellant potentially had a whole lot to lose by winning the appeal.

The appellant was the defendant below, where the trial court struck his answer and entered his default as sanctions for discovery misconduct. Judgment for more than $240,000 was entered after the prove-up hearing. The defendant successfully moved to set aside the default judgment (and underlying default) based on the plaintiff’s failure to serve a statement of damages, but the court left the answer stricken, granted summary judgment on liability based on the allegations of the complaint, and held a jury trial on damages, which resulted in a judgment for the plaintiff of only $8,500. If I were the defendant, I think I would have been thankful for avoiding that judgment of nearly a quarter million dollars, counted my blessings that my liability was only $8,500, and called it a day.

Not so for the appellant here, who contended that when the default judgment was vacated, his answer was revived as a matter of law. Clearly, the appellant wanted the issue of liability tried, and wanted to pay zero.

The appellant lost his appeal, but suppose he had won. What’s the up side? Sure, the case gets to proceed on the merits. But appellant, if found liable, would be facing a new damages determination. Who’s to say that a less-friendly jury or better lawyering for the plaintiff the next time around wouldn’t result in a judgment against the appellant far in excess of $8,500?

I have to think there was something besides money driving the decision to appeal in this case. . . or maybe I’m wrong about the process after reversal and there would be some way to avoid having damages tried again (if you think so, shoot me an email, and I will happily correct the post, if warranted). But going solely by what I can glean from the decision, I would have advised against the appeal.

Any litigation, including an appeal, involves risk. Consider that reversal rates hover around 20% and that you may be throwing good money after bad. There is enough risk in the possibility of losing. Why pursue an appeal where winning could make you worse off?

Sometimes the standard of review is better than you might first think

Clients (and their lawyers) can be disheartened when they conclude that the ruling they want to challenge on appeal is subject to review for abuse of discretion — a standard of review that is indeed daunting. But keep in mind that rulings ordinarily subject to review for abuse of discretion may be subject to the much more appellant-friendly de novo (or independent) standard of review, in which the court of appeal decides he issue without any deference to the trial court.

The defendant-appellant in Children’s Hospital Central California v. Blue Cross of California, case no. F065603 (5th Dist. June 9, 2010) was able to take advantage of this situation. Blue Cross had a contract with the state to provide a managed care plan for Medi-Cal recipients. Plaintiff hospital and Blue Cross had a written rate agreement that lapsed, and did not enter into a new agreement for about ten months. In the interim, the hospital kept providing services and Blue Cross paid the hospital more than $4 million based on government Medi-Cal rates, but the hospital contended that the reasonable value of the services provided was nearly $11 million, and sued to recover the difference.

Blue Cross contended that the trial court improperly limited the evidence of the reasonable value of the services by denying Blue Cross’s discovery motion to compel the production of the hospital’s written agreements with other insurers and granting the hospital’s motion in limine to preclude any evidence of the rates accepted by or paid to Hospital by other payors, the Medi-Cal and Medicare fee for service rates paid by the government, and Hospital’s service specific costs. The hospital contended that reasonable reimbursement rates were governed solely by the six factors set forth in a regulation.

Normally discovery rulings and evidentiary ruling are subject to review for abuse of discretion. Here, however, Blue Cross benefited from a de novo standard, because the basis for the trail court’s rulings — its conclusion that the evidence was irrelevant — is an “analysis of the substantive law governing the case,” making it a legal issue subject to independent review.

The abuse of discretion standard is full of nuance. Don’t let it automatically discourage you from pursuing an appeal. Instead, consider the actual error to be asserted to see if it comes within independent review.

The Court of Appeal and the Supreme Court as courts of first resort?

Well, this is unusual. We usually refer to the Court of Appeal and Supreme Court as “reviewing courts” because they review the decisions of lower courts. But yesterday’s decision in Disenhouse v. Peevey, case no. D063799 (4th Dist. June 3, 2014) discloses a rare instance in which either of these courts is the court of first resort.

The Public Utilities Commission allegedly refused to allow the plaintiff to attend a commission meeting because of plaintiff’s affiliation with the Sierra Club. She sued in superior court to enjoin the meeting, on the ground that her exclusion violated the Bagley-Keene Open Meeting Act, then filed an ex parte application for a mandatory injunction requiring the commission to open the meeting to the public. The trial court held that it lacked jurisdiction and dismissed the complaint.

On appeal, the Fourth District, Division One, holds that the complaint was properly dismissed for lack of jurisdiction. The Open Meeting Act requires meetings of state bodies to be open to the public, and Government Code section 11130 provides that “any interested person may commence an action by mandamus,injunction, or declaratory relief for the purpose of stopping or preventing violations or threatened violations of [the Act].” But the California Constitution, at article XII, section 5, “confers plenary power on the Legislature to ‘establish the manner and scope of review of commission action in a court of record’ [citation],” and  the legislature did so in Public Utilities Code section 1759, which gives only the Supreme Court and the court of appeal “jurisdiction to review, reverse, correct, or annul any order or decision of the commission or to suspend or delay the execution or operation thereof, or to enjoin, restrain, or interfere with the commission in the performance of its official duties[.]”

The court notes there is no real conflict between the Open Meeting Act and the Public Utilities Code provisions. They can be read harmoniously because the Open Meeting Act makes mandamus a means of enforcing the Act, and the Public Utilities Code authorizes a mandamus action to be brought in the court of appeal or Supreme Court.

A substantial evidence argument works on appeal

Substantial evidence challenges don’t succeed very often on appeal, so I sat up and took notice when I saw a successful challenge to the sufficiency of the evidence in today’s decision in Martinez v. County of Ventura, case no. B244776 (2d. Dist April 8. 2014). The Court of Appeal reverses a judgment for the public agency defendant that had successfully asserted a design immunity defense at trial to avoid liability for a defectively dangerous roadside condition that contributed to the plaintiff’s injuries. The burden of proof was on the county to establish that they had made a discretionary design decision in installing the type of roadside drain at issue. However, they were unable to produce any plans for the type of drain involved or any evidence that someone with discretionary authority had actually approved the design.

The substantial evidence standard my not require much evidence to affirm a judgment, but it requires enough that a rational factfinder could reasonably reach the conclusion supporting the judgment. Here, “[t]he evidence showed that the maintenance workers simply built and installed the drains in the field as they saw the need for them.”  A county official testified that he had approved the design, but that county did not have discretionary authority under the law, nor was there any evidence that the official that did have discretionary authority had delegated any authority to the testifying official.

Too many parties (and, unfortunately, even some lawyers) do not understand the substantial evidence standard of review. (That’s a subject for another post.) Some write it off from consideration because it is usually very difficult to win. But Martinez reminds us that the argument should not be overlooked just because it is usually difficult.

What happens when standards of review collide?

Sometimes . . . nothing. As in Pielstick v. MidFirst Bank, case no. B247106 (2d Dist. Mar 26, 2014), in which the court was asked to reverse the trial court’s refusal to allow a plaintiff to voluntarily dismiss his suit after the hearing on demurrers had begun. First issue: what standard of review applies?

There is some conflicting authority as to the appropriate standard of review for a request to voluntarily dismiss a case pursuant to section 581. The majority of cases apply a de novo standard, reviewing the issue as a matter of law where it involves the application of undisputed facts to the statute. [Citations.]

However, in Tire Distributors, Inc. v. Cobrae (2005) 132 Cal.App.4th 538 (Tire Distributors), Division Eight of this District held that an abuse of discretion standard is more appropriate, noting that “every court to consider the issue has based its holding on the facts and circumstances surrounding the dismissal, evaluating whether allowing the dismissal to stand would be unfair or would endorse dishonest litigation tactics.”

This conflict doesn’t turn out to be a problem for the court at all, as it concludes: “We find that we need not resolve the apparent conflict between the cases cited above. Under either standard, no error occurred.” (Emphasis added.)

Once again, an appellate court demonstrates that it will not decide issues unnecessary to the resolution of the case.

The consequences of reluctant unanimity in appellate decisions

Through LinkedIn, I ran across an interesting appellate blog, Briefly Writing. In a post yesterday, blogger Michael Skotnicki shared his alarm at learning from the Eleventh Circuit’s chief judge that panel judges that initially dissent will “routinely” change their votes in order to make the decision unanimous (presumably, only once it is apparent that the majority judges cannot be persuaded to come around to the dissenter’s point of view). Skotnicki believes the practice harms appellate counsel because a losing client may think that the unanimity of the decision suggests he got bad advice or bad advocacy during the course of the appeal, and a wining client may think that unanimity is evidence that the lawyer’s assistance wasn’t that valuable.

I think there are broader implications. Skotnicki notes that the chief judge said this practice results from a sense of comity among the judges and the desire to strengthen precedent. I don’t begrudge any judge the desire to strengthen precedent through unanimity — a desire that has been expressed by Chief Justice John Roberts of the United Stated Supreme Court –  but I think that how a panel gets to a unanimous opinion matters a lot. If an initial opinion that splits a panel can be re-drafted in a way that accommodates a dissenter without unduly weakening the central point of the initial majority– a tall order, I’ll grant —  then the resulting unanimity is well-achieved.

However, changing votes based merely on comity and a desire for strengthened precedent are bad, not just for the lawyers, but for the system. Split decisions are significant in at least two common scenarios.

At the federal level, where circuit precedent may only be changed through en banc review, the dissent can have an impact on whether the circuit will rehear the case en banc. Whether en banc review is sought of the split decision itself or of a later unanimous decision compelled by a split-decision precedent, it seems to me that a principled dissent can influence can make the difference as to whether or not en banc review will be granted, and even have an impact on the ultimate decision reached on en banc review.

In California appellate courts , where a panel is free to depart from decisions by other panels, even those in its own district (that may shock some of you non-California lawyers, but it’s true), a well-reasoned dissent may be just what convinces the appellate court that the precedent was wrongly decided.

I cannot imagine that comity and a desire to strengthen precedent are ever the only reasons for a dissenting judge or justice to change his or her vote, in the Eleventh Circuit or anywhere else. Maybe there was more to the chief judge’s comments on that topic?

Collateral estoppel is no day at the beach (a lesson in appealing in a timely fashion)

Occasionally, a party will try to get around the finality of a decision by making a “collateral attack” on its validity in a separate proceeding. That can work if you are attacking the jurisdiction of the tribunal to issue the prior ruling, but otherwise . . . well, I haven’t seen it work. (But there may be a case out there.)

The plaintiffs in Bowman v. California Coastal Commission, case no B243015 (2d. Dist. March 18, 2014) were unusually imaginative in their attempt. Plaintiffs owned a coastal property. Their predecessor had applied for a coastal development permit to refurbish the residence on the property. After his death, his successors (plaintiffs) received notice that the permit had been approved on the condition that the owners offer to dedicate a lateral easement across the property. The owners did not appeal that decision.

Later, they applied for a second permit, this time to replace a collapsed barn on the property, but also including remodeling of the residence and some other improvements that had been approved in the first permit. They asked the County to remove the condition that was placed on the first permit. The County did so, but two commissioners and a couple of public interest groups appealed to the Coastal Commission, which reversed, meaning the condition stayed. The owners petitioned for administrative mandate.

The arguments the owners (SDS) had made to the commission concerned whether the easement was an appropriate condition to place on the first permit. They get nowhere, for the Court of Appeal points out that having failed to appeal that decision on the first permit, the decision — condition included — had become final, and the doctrine of collateral estoppel precluded the owners’ collateral attack on the condition.

Since they never completed the renovation authorized by the first permit, the owners argued they could avoid collateral estoppel by “walking away” from the first permit, giving Justice Gilbert an opportunity to deliver one of his typically witty lines (emphasis mine):

SDS argues, without citation to authority, that a permit applicant who is dissatisfied with a permit condition may simply “walk away” from the permit and apply for a new one. SDS may be able to walk away from the permit, but it cannot walk away from collateral estoppel.

The lesson here? If you are dissatisfied, appeal in a timely fashion. Don’t count on being able to attack any aspect of the decision in a later proceeding.

Thoughts on publication of opinions imposing appellate sanctions for frivolousness

This recent Southern California Appellate News post by Ben Shatz led me to a case that got me thinking further about the utility of publishing opinions imposing appellate sanctions. More than six years ago, I posted in response to a law review article that Ben co-authored with another, which surveyed the cases imposing appellate sanctions. As I recall, the article limited the time frame of the survey to the period since unpublished decisions became available online, since so many of the decisions imposing sanctions are never published. That led me to write:

I was struck by how many of the cited cases were unreported.  The Court of Appeal should want to publicize the conduct that leads to sanctions, because this would inform and deter.  It could be that sanctions are so rare (awarded in approximately 1 out of every 500 cases during the studied period) that the Court of Appeal finds additional deterrence unnecessary.

My thinking at the time was that, as a rule of thumb, opinions imposing appellate sanctions should generally be published, but I hadn’t really taken into account the criteria for publication. The mere imposition of sanctions does not automatically fit within any of the established criteria for publication in rule 8.1105(c)(6), Cal. Rules of Court. I was thinking in the abstract that publication should be encouraged, even if it meant amending rule 8.1105.

However, I think my initial concerns were probably misplaced. Educating attorneys on what is and is not sanctionable was the intent behind my initial thought that sanctions decisions should be published, but is that really needed? Consider the standard for frivolousness:  ”whether any reasonable person would agree that the point is totally and completely devoid of merit.” In other words, no reasonable person would agree that the point is not frivolous. Doe we need guidance on that?

That standard for frivolousness is at odds with the idea that any sanctions decision would be a close call. Publication of an opinion imposing sanctions for frivolousness might frequently undermine the very basis for the imposition of sanctions, because it would suggest that the imposition of sanctions was a close enough call that it requires an explanation justifying publication under rule 8.1105. Those should be rare occasions, indeed.

If you have thoughts on this, feel free to leave them in the comments.

The “outsider’s perspective” theory illustrated in the extreme

I’ve mentioned before that one of the valuable things an appellate lawyer can bring to your case is the “outsider’s perspective” — the ability to give the case an objective look that trial counsel is often unable to see because of close involvement in the case. What the appellate lawyer might see as the best grounds for appeal may differ wildly from what the trial lawyer thinks is a good basis for appeal.

A trial lawyer that develops tunnel vision on a case usually does so because of his deep involvement with the case over a long period of time, resulting in a personal emotional and intellectual investment in the case. But the tunnel vision can be even more acute when the trial lawyer is a specialist in the substantive area of the law particular to the case. Thus, while an appellate lawyer can bring a fresh angle to almost any case, it may be even more likely the appellate lawyer can do so if the appellate lawyer is relatively new to the substantive law at issue.

That may seem counterintuitive, but I’ve got some high-powered opinion on my side. In today’s Recorder, there’s an excellent article on how experienced Supreme Court appellate lawyers are making inroads into the highly specialized practice of arguing patent cases before the U.S. Court of Appeals for the Federal Circuit. Given my feelings about the benefits of the outsider’s perspective, it’s not hard to see how I was hooked by the opening paragraphs:

Carter Phillips remembers how his patent litigator friends reacted when he asked the U.S. Supreme Court to do away with automatic injunctions upon findings of patent infringement.

“The look of horror and dismay in their faces was startling, because ‘it’s always been that way at the Federal Circuit,’ ” the Sidley Austin partner recalled.

But the Supreme Court shocked the patent bar in 2006 by ruling in eBay v. Merc Exchange that traditional rules of equity apply. Phillips believes his perspective from “outside the fraternity” of patent lawyers helped win the case.

Talk about your outsiders! But it gets better, with a statement from another practitioner, Joshua Rosenkranz, that might appear self-contradictory in the abstract:

“I feel very strongly that you need to start at ground zero with any court and explain to them the technology and explain why the rules that you’re advocating make sense,” Orrick’s Rosenkranz said.

“Ignorance,” he said, “is strength.”

That might be going a little too far in some cases. Ignorance is not so much strength that an appellate lawyer should necessarily venture into completely unfamiliar and specialized territory. It’s worth noting that all of the lawyers profiled in the article work closely on the appeals with the patent litigators — the kind of “team up” approach I advocated in a post long ago in other substantive areas of the law where the trial lawyer is a specialist. One featured practioner notes that each new case makes him feel “dumb” until he reaches an epiphany. Another notes, “[Y]ou have to be unafraid to ask the stupidest questions.”

So if you’re a trial lawyer who thinks your prospective appellate counsel just doesn’t seem to know the field as thoroughly as you’d like as quickly as you’d like, consider that may not be such a bad thing. I’m not saying, of course, that you should trust an appellate attorney who can’t seem to grasp even basic concepts in your specialized area. But your prospective appellate counsel’s intellectual curiosity, even if it appears to betray a lack of expertise in nuanced areas of the substantive legal field or technology at issue in a given case, may be a manifestation of the outsider’s perspective that is so valuable in an appellate counsel. You might be surprised at how that appellate lawyer can shake things up with imaginative, creative — and winning — arguments.

Justice Kennard retiring April 5

Justice Joyce Kennard has announced her retirement from the California Supreme Court effective April 5, on which she will mark the 25th anniversary of her appointment. The article at the San Francisco Chronicle gives people a glimpse into  Justice Kennard’s drive and perseverence:

Kennard was born in the East Indies and, as a child, was held along with her mother in a refugee camp in Java during World War II. They moved to the Netherlands after the war, and as a teenager Kennard had a leg amputated above the knee after developing a tumor.

She came to the United States in 1961, found work as a secretary, and put herself through college and law school. After a stint in the state attorney general’s office, she was named to a Municipal Court in Los Angeles by Gov. George Deukmejian in 1986. Three years later, he named her to the state’s high court.

Her official bio is here.

Given that Justice Kennard cited her desire to get back to “long-neglected friends” after years of seven-day workweeks, and that her retirement letter ended on a poetic note, the fond farewell I learned at the Naval Academy seems appropriate, regardless of whether she is  sailor: May you have fair winds and following seas, Justice Kennard.

The law, the story, and the policy

Almost sounds like the beginning of a joke, doesn’t it? (A law, a story, and a policy walk into a bar . . . )

But I’m not presenting these things as a joke. According to San Diego antitrust attorney Jarod Bona at the Antitrust Attorney Blog, these are the Three Components of Every Effective Appellate Argument. I agree with a lot of his post, but I especially like this sentiment near the end (emphasis mine):

To [combine these elements] effectively is not easy. It is an art form and requires careful thought and attention. But when it is done right, it is beautiful.

Amen!

How to write for the “iPad judge”

No brief would look good on my pathetic iPad, which has some of the pieces of its broken screen held on with tape!

Are a lot of appellate judges/justices reading briefs on iPads these days? The Columbia Business Law Review recently published a short piece called Writing a Brief for the iPad Judge (on the journal’s online “announcements” page, which looks like the rough equivalent of a blog), which states that “a large and growing percentage of briefs are read on iPads” and offers advice on how to prepare a brief to make it iPad friendly.

As you might expect, the advice is not about content, but about how to present the content in a format optimized for reading on an iPad. “A brief written to be read on an iPad should differ from one written for text in three main ways: it should use fewer footnotes, should use a different font, and should avoid confusing hierarchical organization.” Okay, I already minimize my footnotes, I can use whatever font works best, but that last tip — “avoid confusing hierarchical organization” – sounds like trouble to me:

Perhaps most importantly, briefs written for iPads should avoid the traditional legal hierarchical headings: Part I, Section A, Subsection 1, etc. When flipping though a paper brief, a reader can physically feel if they are near the beginning or end and correctly guess if the Section A they are reading is I.A or VII.A. For digital readers, however, every A looks the same. This provides a strong reason to depart from tradition and use “scientific” numbering: Part 1, Section 1.1, Subsection 1.1.1. While some argue that scientific hierarchical headings are always superior, when writing for the screen, the case is even stronger. (As an added advantage, the scientific hierarchy avoids the confusion about what to call a “ii”). The same considerations, according to Ilene Strauss, Director of Columbia Law School’s Legal Writing Program, also emphasize “the need to use effective headings,” which can help “keep a reader on track within a smaller screen.”

I think it would be far better to use the usual numbering system. For one thing, I think the “problem” identified is a mythical one. The reader of a physical brief might be able to estimate quickly whether the Section A on the page is under heading I, II, III or IV, and lose that advantage in an eBrief, but so what? What’s important about the superior heading is not its number, but what it says. Thus, it is the ease of actually finding the superior headings that is important. Whether in a physical brief or an eBrief, it’s easy to bookmark the table of contents and locate the superior headings easily. I have never liked scientific numbering because it doesn’t take too much depth to make the numbering unwieldy. ”1.1.1″ is a lot more cumbersome than a single character, and 1.1.1.1 is worse. I would hate to see courts mandate scientific numbering.

The piece has some links to some other fun reading, too, including this coverage of the Fifth Circuit system for electronic briefs, in which the court does all the work of hyperlinking to authorities (and soon, hyperlinks to the record) rather than requiring the submitting party to do the work before submitting the brief.

Make the argument yours, not someone else’s

You represent an appellant in a state court action who claims the action is precluded by a prior federal court action because the plaintiff split his cause of action between the two lawsuits. Your first argument is under the longstanding “primary rights” standard applied by the California courts. Your second is that the court should apply the federal “transaction” standard, which is far more favorable to your position. Only one standard can apply, and you are asking the appellate court to apply a federal standard not previously applied by the California courts. Throw into the mix the fact that the continuing vitality of the California “primary rights” standard was recently reaffirmed by the California Supreme Court, and you can see you’ve got your work cut out for you.

That is the uphill climb that appellant faced in FujiFilm Corp. v. Yang, case no. B243770 (2d Dist., Jan. 24, 2014). The Court of Appeal rejects the invitation to apply the federal “transaction” standard and holds that under the California “primary right” standard, there was no splitting of the cause of action, and thus no preclusion.

One can debate the best way to argue for application of the federal standard — if at all — in such circumstances. Perhaps unique underlying facts or the federal-state dichotomy between the two actions would give an opening to argue that the federal standard should be applied in this particular instance. But nothing like that is mentioned in the Court of Appeal’s rather uncharitable assessment of the appellant’s effort (emphasis mine):

Appellant urges that we apply the “transaction” doctrine of federal law, instead of California’s primary rights theory, to find Fuji wrongfully split its cause of action. We need not linger on appellant’s request, however, because she does not cite any California authority applying the transaction doctrine to define a cause of action. Instead of pertinent case law to support her position, her appellant’s brief relies solely on an eight-and-a-half page block quotation from a 15-year-old law review article. But our Supreme Court as recently as three years ago affirmed that the primary rights theory applies in California. [Citation.] We are not free to depart from binding Supreme Court precedent, and we decline appellant’s invitation to make new law by adopting the federal transaction doctrine. [Citation.]

That’s some quotation!

Was the appellant just trying to tee the case up for review by the California Supreme Court? We’ll see. I’ll update this post if a petition for review is filed.

UPDATE (3/28/2014): The remittitur issued today. No petition for review was filed with the Supreme Court.

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