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

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

Writing on a report to be released by the Obama administration today from the President’s Council of Advisors on Science and Technology (PCAST), Judge Kozinski calls for lifting, or at lease easing, restrictions imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) on federal court review of state court criminal judgments, because the report finds that many of the scientific methods used to convict criminal defendants, including long-standing methods like fingerprint identification, are – in the judge’s words – “flawed, some irredeemably so.” This is scary stuff for everyone, not just those in the criminal justice system:

Only the most basic form of DNA analysis is scientifically reliable, the study indicates. Some forensic methods have significant error rates and others are rank guesswork. “The prospects of developing bitemark analysis into a scientifically valid method” are low, according to the report. In plain terms: Bitemark analysis is about as reliable as astrology. Yet many unfortunates languish in prison based on such bad science.

Even methods valid in principle can be unreliable in practice. Forensic scientists, who are often members of the prosecution team, sometimes see their job as helping to get a conviction. This can lead them to fabricate evidence or commit perjury. Many forensic examiners are poorly trained and supervised. They sometimes overstate the strength of their conclusions by claiming that the risk of error is “vanishingly small,” “essentially zero,” or “microscopic.” The report calls such claims “scientifically indefensible,” but jurors generally take them as gospel when presented by government witnesses who are certified as scientific experts.

Judge Kozinski asserts flaws in analysis of fingerprints, bitemarks, firearms, footwear, hair, and “char patterns.” The last of these is used to determine whether a fire is the result of arson, and, according to Judge Kozinski has been shown by studies to have “absolutely no scientific basis.” Judge Kozinski notes that at least one person has been executed following a conviction based on char pattern analysis.

If you initially recoil from Judge Kozinski’s call to amend the AEDPA, consider this harrowing fact cited by the judge: of more than 7,600 convictions (including dozens of capital cases) involving FBI lab examiners that were impugned by a 1997 Justice Department inspector-general report, only 17  had been reviewed by 2014, seventeen years later. Judge Kozinski concludes:

Among the more than 2.2 million inmates in U.S. prisons and jails, countless may have been convicted using unreliable or fabricated forensic science. The U.S. has an abiding and unfulfilled moral obligation to free citizens who were imprisoned by such questionable means. If your son or daughter, sibling or cousin, best friend or spouse, was the victim of voodoo science, you would expect no less.

Judge Kozinski has a knack for challenging political ideologies of all stripes, and I think his highlight of the PCAST report (and, of course, the report itself) could prove challenging, and not just on the issue of criminal justice reform. “Law and Order” types who claim the science on climate change is unsettled may have a hard time rejecting Judge Kozinski’s call for reform, while full-throated advocates of the judge’s suggested reforms who also campaign on legislation to combat climate change may have to admit that maybe the science on climate change is not as settled as they say it is. In short, the report profiled by Judge Kozinski should get a lot of people thinking.

UPDATE: It occurred to me immediately after publishing this post that the challenge to politicians would be even greater if the AEDPA had originally passed with broad bipartisan support, so I looked up the vote and . . . yes, this is going to be a problem for a lot of politicians: the votes for the AEDPA, which was passed in identical form in both houses of Congress, was 91-8 in the Senate and 293-133 in the House of Representatives.

Will appeals lawyers be replaced by computers?

San Diego Comic Con SDCC 2016 Cosplay

Will your future lawyer be a computer? A robot?
V Threepio via Compfight

Technology has been displacing low-wage and less-skilled workers for a long time. Is it time for white collar professionals – including lawyers – to fear they are next?

At  The American Interest blog: “Venture capital money keeps flowing to promising new tech companies that are working to automate many of the routine tasks conducted highly-paid 20-somethings at big city corporate law firms.” After noting that professionals may soon feel the squeeze from technology that low-wage workers have long endured, the pot continues, “Big law firms are especially overdue for disruption … The next stage of the information revolution may end up looking more egalitarian than the last.”

I sense a little hostility there, but maybe I’m just being defensive.

That post links to this article at Bloomberg, about a new start-up:

Could the armies of lawyers needed to close billion-dollar deals soon be a thing of the past?
That’s what Invoke Capital, the London-based venture firm run by former Autonomy Plc Chief Executive Officer Mike Lynch, is betting with its latest project financing. Invoke said Wednesday that it’s making an investment in Luminance, a U.K. startup using artificial intelligence to process legal documents and automate due diligence in mergers and acquisitions.

Well, that’s a relief! They’re just gunning for M & A work. For now. But if you use computerized legal research services like Lexis or Westlaw, ask yourself: is it all that hard to imagine those services advancing to where, armed with facts provided by an online form,  they can take over the research completely, and maybe put the results together into a cohesive argument? Wouldn’t the ultimate end be there would be no more argument, but instead only one correct legal result arrived at by a computer? Even appellate justices would not be safe.

I think there are a few things standing in the way of that end. People would not accept it because they would not trust the programmers. But the biggest obstacle? Teaching a computer how to apply the “abuse of discretion” standard of review.

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

Screen Shot 2015-08-20 at 11.46.15 AMAccording to a notice I received today from the California Appellate Project:

The clerk of the 2nd District Court of Appeal has asked us to inform the panel that True Filing will be available in this district beginning in November.  For two months, November and December, True Filing will coexist with the present eFiling system presently being used in the district.  The choice of which to use will be yours.  Then, in January, the present eFiling system will disappear, and everyone will be required to use True Filing.  Those of you already working in other districts with True Filing will definitely have a leg up on the rest of us.

That last sentence is certainly true. TrueFiling takes some getting used to.

The Second District’s present e-filing system has the advantage of being free, but it is also not a pure e-filing system. Hard copies of briefs still had to be submitted to the court. Also, original proceedings (writ petitions) cannot be initiated electronically under the current system, but I have initiated original proceedings via True-Filing in other districts.

You can’t stop progress. But I still hope the justices print out my briefs before reading them.

The 2015 edition of the California Litigation Review is Out

Find it and read it!

Find it and read it!

 

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

Jameson v. Desta (2015) 24 Cal.App.4th 491 (indigent plaintiff with fee waiver unable to afford court reporter still held limited in appellate argument by absence of transcript);

Hewlett-Packard Co. v. Oracle Corp. (2015) 239 Cal.App.4th 1174 (in which the court offered some friendly advice to the legislature for modification of California’s anti-SLAPP statute);

Ellis v. Ellis (2105) 235 Cal.App.4th 837 (Court of Appeal’s summary denial of motion to dismiss does not preclude granting the motion at the merits stage);

Ironridge Global IV, Ltd. v. ScripsAmerica, Inc. (2015) 238 Cal.App.4th 259 (explaining and reaffirming the disentitlement doctrine, under which disobedience of the order appealed from can result in dismissal of the appeal);

McKenzie v. Ford Motor Co. (2015) 238 Cal.App.4th 695 (how a trial court’s explicit reasoning can undermine presumptions inherent in the deferential “abuse of discretion” standard of review);

Lanquist v. Ventura County Employees’ Retirement Assn. (2015) 235 Cal.App.4th 186 (exercising heightened review of an administrative agency’s construction of statute);

Bermudez v. Chiolek (2015) 237 Cal.App.4th 1311 (judicial notice of laws of physics cannot be basis for arguing new theory of accident on appeal);

In re Christopher B. (2015) 240 Cal.App.4th 809 (trial court cannot “clarify” a mistaken dismissal to reinstate some charges);

AP-Colton, LLC v. Ohaeri  (2015) 240 Cal.App.4th 500 (failure to pay fee to reclassify case from limited to unlimited did not cap damages amount to maximum awardable in an unlimited case);

Marriage of Oliverez (2015) 238 Cal.App.4th 1242 (limits on superior court judge’s power to reconsider rulings of another superior court judge);

People v. Scarbrough (2015) 240 Cal.App.4th 916 (trial court lacks jurisdiction to recall and reduce sentences under Proposition 47 when the judgment for those crimes is on appeal);

Martinez v. State of California Dept. of Transportation (2015) 238 Cal.App.4th 559 (trial court abused discretion in denying mistrial where counsel repeatedly violated orders on motions in limine);

Shiffer v. CBS Corporation (2015) 240 Cal.App.4th 246 (new theory developed by expert witness does not merit new trial where evidence upon which theory is based was previously in party’s possession).

Unfortunately, the Review appears to be available online only to members of the Litigation Section of the California State Bar. If you are a litigator who is not a member, find a friend with a copy of the Review and browse it. Besides articles on appellate issues, there are articles on alternative dispute resolution, class actions, employment law, etc. It is a great resource for catching up on developments you may have missed.

UPDATE: I should have given credit for the great year-end write-up on Appeals and Writs not just to the review generally, but to the two lawyers who authored it: Ben Feuer (who graciously thanked me for the post even though I had not mentioned him by name) and Anna-Rose Mathieson of Appellate Law Group LLP. Thanks, guys!

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

checked_tick

Creative Commons License Oliver Tacke via Compfight

Will this year’s elections have an impact on Supreme Court review?

Death penalty cases can be automatically appealed to the Supreme Court, but a mere civil litigant has to ask the supreme court — convince it, really — to review its case. The odds are terrible; only about 1 in 25 petitions for review succeeds.

Those odds may be going up a little after this year. For the 2014-2015 term, death penalty cases made up nearly 18% of the court’s workload (13 death penalty decisions out of 73 majority opinions). What if all those death penalty cases went away? Would the court be able to take on more cases?

It’s quite possible, according to an article by Ben Feuer and Ann-Rose Mathieson in he 2015 edition of California Litigation Review.* The 18% statistic belies the time actually spent on death penalty cases, say the authors, “given the generally lengthy records and briefing, along with couldn’t-be-higher stakes.”

What are the chances those death penalty cases will go away? Higher than they have been in a long time, it seems. This year’s ballots may see competing death penalty initiatives, note the authors. One would streamline the appeals process in death penalty cases, while the other would eliminate the death penalty. The latter initiative seems to have a real chance. According to the authors, a recent poll found support for the death penalty in California at its lowest point in 50 years.


*Published by the Litigation Section of the State Bar of California, and the source for the case statistics cited in this post.

 

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

The Los Angeles Times has a story today on Justice Goodwin Liu, or, more particularly, on how his two recent lengthy dissents from orders denying review give some insight into what the court’s reasoning was. Usually, an order denying review is quite terse and gives no clue as to why the court reached its decision not to grant review. Justice Liu’s recent dissents, according to the article, shed some insight on the decision-making in those cases, but I’m afraid the article doesn’t do very well at explaining how. The passages it cites from the dissents demonstrate why Justice Liu was in favor of granting review by showing what he was thinking, but not why the justices who voted against review did so. The article has links to the dissents, so it is easy enough to follow up if you are curious.

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

The answer to both questions in the title of this post is “no,” judging from this abstract of a paper by Michael Whiteman, Associate Dean for law Library Services & Information Technology at Northern Kentucky University – Salmon P. Chase College of Law, titled Appellate Jurisdiction in the Internet Age:

A close examination of the citation practices of the United States Supreme Court and the California Supreme Court from the twentieth and twenty-first centuries reveals that appellate jurisprudence in the Internet age closely resembles that of the pre-Internet age. These findings, coupled with the continued criticism of legal researchers in the Internet age, call for a retrenchment in training future lawyers in the essential skills of “thinking like a lawyer.” The traditional techniques that have been taught by legal research and writing professors, and their doctrinal counterparts, must remain an essential part of our legal education system. Appellate jurisprudence in the Internet age is the same as it has always been. Whether one uses the Internet or a treatise to find legal information, the analytical skills necessary to determine relevant precedent remains the most important skill for a lawyer in the Internet age.

Whiteman notes that worries about how availability to ever-larger amounts of legal information might corrupt jurisprudence are nothing new: “The truth is that commentators have been worried about the explosion of legal information and the effects this has had on legal research and jurisprudence for close to two centuries,” (emphasis added, footnote omitted), noting that in 1821, Justice Story lamented that too many young lawyers were relying on treatises instead of actual legal opinions of the courts. Making a similar argument regarding today’s technology-driven growth in the availability of legal information merely continues a “time-honored tradition”:

Several commentators have criticized electronic research and its effects on the research abilities of law students, lawyers, and judges. While there is probably some truth in these criticisms, they reflect a continuation of the time-honored tradition of criticizing the research skills of law students and newly minted attorneys. The one constant that remains is that regardless of the tools used to perform legal research, law students must gain a deep foundation of “thinking like a lawyer.” Thinking like a lawyer encompasses the analytical skills that form the basis for “good” lawyering which will allow law students (and future lawyers) to uncover and utilize the basic building blocks of each jurisdiction’s jurisprudence.

(Footnotes omitted.)

I have not read the entire paper, but the conclusions stated in the abstract and the excerpt above match my intuition. As my prior writing on electronic briefs and laptops may indicate, I think too many people of all stripes, not just lawyers, expect technological tools to revolutionize substantive thought or to improve thinking rather than merely change the way we access, store, or review information. Technology allows us to find relevant information incredibly fast (and makes it tempting to ignore the age-old rule to always read the entire case before relying on it as authority). But once we access the information, we must still rely on our good sense and proven analytical methods.

Thanks to the Legal Writing Institute and the Social Science Research Network for making this paper available. Of course, if you’re still down on technology, you may instead regret that these organizations continue to contribute to what you see as a glut of legal writing! From me, however, they get a “thank you.”

The patience of the Court of Appeal has its limits

S is for Sloth

If your attorney moves like this sloth, you’ve got trouble.
Tim Jones via Compfight

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

In general, deadlines for appellate briefs are easily extended. One usually sees the limits of an appellate court’s patience in an order granting an extension, with the admonition NO FURTHER EXTENSIONS. Even that may not be the end of the court’s patience. If you miss that deadline, there’s always California Rules of Court, rule 8.60(d), which provides that “For good cause, a reviewing court may relieve a party from default for any failure to comply with these rules except the failure to file a timely notice of appeal or a timely statement of reasonable grounds in support of a certificate of probable cause.” (Emphasis added.)

Younessi provides an example of what does not constitute good cause. The respondent missed the deadline for his brief, then filed for relief seven months after the blown deadline and barely two weeks before the scheduled oral argument. Though respondent had a series of at least three lawyers representing him on the appeal, neither respondent’s original attorney (Wass) nor his successors filed the brief or even moved promptly for relief from the default:

This court has the discretion to grant relief from a party‟s failure to timely file a brief “[f]or good cause.” (Cal. Rules of Court, rule 8.60(d).) However that phrase may be defined (see Cal. Rules of Court, rule 8.63), plaintiffs’ request does not qualify. The motion and its supporting declarations reflect the legal representation provided by plaintiffs‟ current attorneys is little better than that provided by Wass. Casey admittedly knew in August that Wass had failed to timely file the respondents‟ brief, but when he substituted in as plaintiffs‟ counsel a month later, he still took no action to seek relief from this default. Rather, Casey waited another month and a half for Wass to prepare the brief. Even then, nothing was done for another two weeks when plaintiffs associated in a second attorney. Once the motion for relief from default was prepared, it took another two weeks to file it with this court.

Unless multiple attorneys for a party are working together and communicating well about their respective responsibilities, and holding each other accountable, “more” does not equal “better.”

 

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

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

The appellants in Younessi v. Woolf, case no. G051034 (4th Dis. Feb. 16, 2016) learned this the hard way.  The appellants were defendants who successfully moved for an entry of dismissal after the plaintiff failed to file an amended complaint following an order sustaining demurrers with leave to amend. The plaintiff filed a motion under Code of Civil Procedure section 473(b) to set aside the dismissal, on grounds of excusable neglect and attorney fault. In granting the set-aside motion, the trial judge stated that she relied on section 473, subdivision (b)’s “discretionary” provision.

The appellants succeeded in convincing the court of appeal that the trial judge had abused her discretion in granting discretionary relief. The plaintiff offered no explanation for not seeking relief promptly and the attorney’s affidavit offered only “cryptic explanations” for his conduct, thus failing to establish that his neglect was excusable.

Appellants still lost, however, because the court affirmed on an alternate ground, which the trial court apparently never considered: the “attorney-fault provision” of section 473, subdivision (b), mandated setting aside the dismissal. The statutory mandate in section 473, subdivision (b) to set aside a default or dismissal upon a suitable affidavit from counsel reads as follows:

Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.

Long-time readers may recall I have warned against some pitfalls in this type of motion, and noted a significant split of authority regarding the applicability of this provision. But in this case, the plaintiff got it right. The motion was timely, the affidavit of fault was sufficient, and the trial court disposition was “the procedural equivalent of a default judgment” (though this was not obvious).

Appeals from orders granting section 473, subdivision (b) motions, in the abstract, will frequently present an opportunity for the appellate court to affirm on alternate grounds, since the statute itself provides for alternate grounds for relief from certain defaults and judgments. Be on the lookout for this whenever you are the respondent in such an appeal.

And never go into an appeal thinking you have a “slam dunk.”

The twists and turns of precedent

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

Legal researchers have many powerful tools for finding cases: Full-text searching with different interfaces from different providers, annotated statutes, digests, and a wide variety of secondary sources. But there are areas where even experienced researchers are puzzled: When will an intermediate court follow rulings of a sister court? What sources can advocates cite? (or: why can advocates cite secondary sources but not unpublished opinions?) Are fewer cases considered to be cases of first impression, since the cumulative body of precedent is so large?

This essay examines each of these questions. It is accessible to beginning students, first wrestling with the questions, but should also interest more experienced researchers.

Before you say to yourself, “Yeah, like I’ve got time to read a lengthy, impenetrable, egghead article,” take it from me, the piece is fairly short (about 13 pages, with about a third of it in the footnotes) and the abstract is correct that the article is “accessible.” For those of you curious about which of Shakespeare’s plays have been cited the most in appellate briefs (not always to good effect), Whisner has done that homework for you and put the results in a table in her article (#1 cited Shakespeare Play: Hamlet).

I especially enjoyed her discussion about prohibitions against the citation of unpublished opinions. (Long-time readers may remember that the rule against citation of unpublished opinions generated a lawsuit against the California Supreme Court a few years ago and that there is one organization very agitated about the rule.) She asks some good questions about the rule. Has technology made the rationale for the rule obsolete? Why is it alright to cite Shakespeare and Dr. Seuss, but not alright to cite unpublished decisions? The paper is well worth a read.

“Petty Theft Auto” just doesn’t have the same ring to it

Grand Theft Auto 6Enthusiasts of the “Grand Theft Auto” video game might think that “petty theft auto” sounds rather wimpy, but to a felon car thief seeking a sentence reduction under Proposition 47, “petty theft auto” sounds pretty good after the decision in People v. Ortiz, case no. H042062 (6th Dist., Jan. 8, 2016),

Prop 47, adopted by the voters in 2014, reduced certain drug and theft offenses to misdemeanors and allowed those previously sentenced for those crimes as felonies to petition for resentencing if the crime would have been a misdemeanor if Prop 47 had been in effect. In Ortiz, the statute violated by the defendant was Vehicle Code section 10851, subdivision (a), which reads in part:

Any person who drives or takes a vehicle not his or her own, without the consent of the owner thereof, and with intent either to permanently or temporarily deprive the owner thereof of his or her title to or possession of the vehicle, whether with or without intent to steal the vehicle, or any person who is a party or an accessory to or an accomplice in the driving or unauthorized taking or stealing, is guilty of a public offense[.]

Prop 47 enacted Penal Code section 490.2, which reads in part at subdivision (a):

Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor[.]

The trial court denied the defendant’s resentencing petition because it held that, as a matter of law, Section 10851 did not meet Prop 47’s eligibility criteria, but in Ortiz, the appellate court reverses. It notes that Section 490.2 makes a misdemeanor the obtaining of “any property by theft.” Thus, even though Prop 47 did not list section 10851 by name or number, Section 490.2 “unambiguously includes conduct prohibited under Section 10851.”

It is worth noting that Ortiz departs from two decisions – one in the Fourth District and one in the Third District – which held that Section 490.2 did not apply because Section 10851 does not proscribe theft. But another Court of Appeal decision created a split of opinion within the Fourth District, coming out the same way as the Ortiz court. The issue may be teed up for Supreme Court review.

Perhaps you have been wondering what kind of car could have been worth less than $950 at the time the defendant stole it. Answer: a 22-year old Honda Civic. Even though its owners had paid just $1000 for it and sold it for $300 after recovering it, the evidence was insufficient to establish its value at the time of the theft. Nonetheless, this was not a hollow victory for the defendant. In reversing the trial court, the Court of Appeal ordered the resentencing petition dismissed without prejudice, which gives the defendant the opportunity to petition again if and when he can garner evidence that the value of the car was $950 or less when it was stolen.

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

one version of the ALA Organization Chart

Stare decisis principles and relationships among courts are not this complicated
ALA staff via Compfight

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

Given that controlling authority and the rules of stare decisis, under which a California Supreme Court opinion binds all lower courts in the state, what could the respondent — or any similarly situated respondent — do?

First, a respondent can look for ways to challenge the appealability of the judgment, as the Miranda respondent did (unsuccessfully). Second, a respondent can do its best to distinguish the case from the case on appeal; perhaps it is not as controlling as it appears to be at first blush. But given how concisely the Court of Appeal dealt with the merits, distinguishing Iskanian probably was not an option for the Miranda respondent.

I can tell you one thing that will never work, at least not until the Supreme Court decision has been disapproved by a later Supreme Court decision: arguing to the Court of Appeal that the Supreme Court decision was wrongly decided. Yet, respondent argued that in Miranda, apparently relying on rationale set forth in some federal decisions:

Respondents’ sole argument is that Iskanian was wrongly decided. However, Iskanian is binding on this court, regardless of any contrary holdings by lower federal courts. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455; Montano v. The Wet Seal Retail, Inc. (2015) 232 Cal.App.4th 1214, 1224, fn. 5 [“We recognize that several federal district courts in this state have found PAGA waivers to be enforceable . . . . However, ‘ “[d]ecisions of the lower federal courts interpreting federal law, although persuasive, are not binding on state courts.” ’ ”].)

It can be awfully difficult for a respondent to concede anything on the appeal. But, if the Court of Appeal is correctly characterizing the respondent’s argument, this “wrongly decided” argument never really stood a chance.

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

Steno

Court reporter’s stenotype machine keyboard layout. Public domain image from Wikipedia.

Jameson v. Desta, case no. D066793 (4th Dist. Oct. 20, 2015) is a grim reminder of the impact made by the court’s budget crisis, which resulted in the loss of many court-employed court reporters, requiring that parties provide their own court reporters for trial at their expense. The trial in this case went unreported, and that was enough to keep the plaintiff from prevailing on appeal. But before I get to how that came about, let me briefly describe the history of the case, for it makes the result all that much more heartbreaking for the plaintiff.

Plaintiff sued a prison doctor for malpractice. The doctor obtained a judgment on procedural grounds, plaintiff appealed, and got the judgment reversed. The doctor obtained a second judgment on procedural grounds, and again, plaintiff got the judgment reversed on appeal. The doctor then obtained judgment for the third time, this time by prevailing on a summary judgment motion, and again, plaintiff got the judgment reversed on appeal.

By now, plaintiff has been litigating for a decade, and the really amazing thing is that he has done it while incarcerated and without an attorney.* Surely, that perseverance would be rewarded by a payoff at the end of this long, winding road?

Unfortunately for the plaintiff, no. After remand from the third appeal, the case went to trial before a jury, but without any court reporter. The doctor made an oral motion for nonsuit at the end of plaintiff’s opening statement, the court granted the motion, and plaintiff appealed from the resulting judgment. The fourth appeal proves to be the charm for the doctor, because plaintiff’s challenges fall short, and the judgment for the doctor is affirmed.

Plaintiff made multiple challenges to the judgment on appeal, but two of them are directly related to the transcript. First, he contended that the trial court erred in failing to provide a court reporter, suggesting that the court gave him inadequate notice that an official court reporter would not be available and that the court should have provided a reporter because plaintiff had obtained an order waiving court fees. But he received notice about the reporter 10 days before trial, which the court found adequate. And, while Government Code section 68086, subdivision (b) indeed provides that the official court reporter fees are waived, the Court of Appeal held that section “does not mandate that a trial court provide indigent litigants with court reporter services where no official court reporter is provided by the court, as was true in this case.” Further, the trial court’s local rules specified that even parties with fee waivers are responsible for the costs of providing a reporter where no official reporter is provided.

Second, plaintiff argued that the trial court erred in granting the motion for nonsuit. Here, the absence of a court reporter’s transcript was fatal. Because the absence of a reporter’s transcript precludes an appellant from raising “evidentiary issues” on appeal, and a motion for nonsuit following the opening statement requires the trial court to “review the evidence to be presented at trial,” plaintiff could not demonstrate any error, even though the court’s minute order was fairly detailed.

The court was not unsympathetic to the difficulties faced by an incarcerated and indigent litigant, but the rules won out:

This court is fully aware that [plaintiff’s] incarceration and his financial circumstances have made it difficult for him to pursue his claims in court. This case aptly demonstrates that civil justice is not free. While this court is sympathetic to the plight of litigants like [plaintiff] whose incarceration and/or financial circumstances present such challenges, the rules of appellate procedure and substantive law mandate that we affirm the judgment in this case.

(Footnotes omitted.)

Of course, it’s possible the plaintiff would have lost his appeal even if he had a reporter’s transcript. But he’ll never know.


* Actually, it’s not clear from the opinion whether the plaintiff was incarcerated the entire time, but it appears he was incarcerated for at least part of the litigation.

UPDATE (4/13/2016): I missed this when it happened, but the Supreme Court has granted review in this case. The issue presented focuses on an issue I did not concentrate on in my post. Plaintiff had been granted a waiver of court fees, yet was eventually penalized for failing to pay to have a reporter record the proceedings. The issue presented, as stated in the Supreme Court’s website, is:

In the case of a litigant who has been granted a fee waiver (Gov. Code, § 68631), can a county’s superior court employ a policy that has the practical effect of denying the services of an official court reporter to civil litigants who have been granted such a fee waiver, if the result is to preclude those litigants from procuring and providing a verbatim transcript for appellate review?.

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

Goed Zoekveld

Keep an eye on developments in the law while your appeal is pending.
Image courtesy of Bart van de Biezen via Compfight

Most lawyers I know — at both the trial level and the appellate level — keep up with the daily “advance sheets,” which provide a brief summary of Supreme Court and Court of Appeal decisions published the day before. It is an important habit, because you never know when a great decision for your pending case is going to come up. I worked for an attorney who contended it is malpractice for an attorney not to review the advance sheets daily.

For a great example, see Miranda v. Anderson Enterprises, Inc., case no. A140328 (1st Dist., Oct. 15, 2015), where the plaintiff/appellant gained the benefit of a Supreme Court decision that came out while his appeal was pending. The Supreme Court case, Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th 348, required reversal of the judgment that would have otherwise deprived Miranda of the right to arbitrate representative claims under the Labor Code Private Attorneys General Act (Lab. Code, §2698 et seq.). Iskanian was so directly on point that it required only a paragraph of substantive discussion in the Court of Appeal opinion. Of course, the case might have been decided the same way without the Supreme Court’s Iskanian decision, or the Court of Appeal may have asked for supplemental briefing on the effect of Iskanian had neither party addressed it in the briefing, but the new case sure made it easier for appellant to brief the appeal.

The obvious application of the Iskanian holding probably explains why so much of the Court of Appeal opinion in Miranda was spent on the subject of appealability. Faced with a controlling Supreme Court opinion, the respondent probably thought its best hope for keeping the judgment in place would be to get the appeal dismissed for lack of appealability, and spent the bulk of its brief on that issue. However, the respondent failed to convince the Court of Appeal that the judgment was not appealable, leading to reversal based on Iskanian.

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

Prop 47

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

First, a brief reminder of what the California electorate voted into law last November. Prop 47 reclassifies certain crimes from felonies to misdemeanors and provides that persons convicted of felonies that are now classified as misdemeanors may “petition for a recall of sentence” to request resentencing under the new standards.

You can imagine there are quite a few defendants in line for this process. The Los Angeles Times reported just a few weeks after passage of Prop 47:

Judges expect that tens of thousands of Californians may seek to have their felony convictions reduced. Courts have had to scramble to handle the surge in workload, and some agencies are planning to ask for more public funding to cover the added duties.

Now, on to the quagmire. Defendant Scarbrough appealed her felony convictions. While her appeal was pending, she also filed a Prop 47 petition to be resentenced on the same convictions, and the trial court entered an order reducing her original sentence of 9 years, 4 months to just 6 years. Scarbrough attempted to abandon her appeal, but the Court of Appeal refused to dismiss it and asked for supplemental briefing on “an issue that is likely to recur and to otherwise evade review” — whether the trial court had jurisdiction to rule on a petition for recall and resentencing while appeal from the same convictions was pending.

Because the trial court determined that the trial court lacked such jurisdiction, its order reducing Scarbrough’s sentence is void. The obvious question then becomes: What about other defendants that have already been resentenced while their appeals were pending? Well, the court acknowledges that its ruling creates a mess, but provides no guidance as to how it will be cleaned up:

We do recognize that several people with pending appeals have been resentenced ostensibly pursuant to section 1170.18 while their appeals were pending. This does create a quagmire, especially as regards individuals who have been released as a result of  their resentencing. However, that is an insufficient reason for us to find concurrent jurisdiction where it was not statutorily afforded.

Given the news coverage about the “flood” of Prop 47 petitions — the Sacramento Bee reported last month that 4,347 prisoners had been release under prop 47 through the first week of August, with many thousands more having been resentenced without being released — I was surprised that the court said that several” people had their resentencing petitions granted while their appeals were pending. While it makes sense that the vast majority of the petitions are from prisoners whose appeals are long over, “several” still strikes me as a surprising characterization of the number that have been resentenced or released while their appeals were pending.

Perhaps that makes the term quagmire all the more significant. If “several” void resentencing orders create a quagmire, what would have been created if the number of void resentencing orders numbered in the hundreds or thousands?

The implications on appeal of “clarified” trial court orders

EraserIt drives me crazy when an adverse party asks the trial court to “clarify” a recent ruling. Too often, such a request is not a request for clarification at all, but instead an effort to expand the scope of the order or otherwise change its meaning. Funny how these requests for “clarification” are brought up after an attorney realizes he neglected to make an argument, ask for a specific form of relief, or prejudiced his client’s interest by an admission in court.

Such was the case in In re Christopher B., case no. C077467 (3rd Dist. Sept. 28, 2015), a “Murphy conservatorship” proceeding. (Welf. &  Inst. Code, §§ 5000, et seq., 5008, subd. (h)(1)(B), 5361; Pen Code, § 1370.) A Murphy conservatorship is premised on the proposed conservatee’s mental unfitness to stand trial on specified crimes and the lack of prospect of restoration to competency. There must be a pending criminal proceeding in order to establish a Murphy conservatorship . . . which is where the problems started for the Public Guardian seeking to establish the conservatorship.

Christopher B. was charged by criminal complaint with the prerequisite crimes and found not competent to stand trial, and his criminal proceedings were stayed while he was committed to a state hospital. As he neared the end of his maximum legal commitment there, the hospital determined that he could not be restored to competency because he refused voluntary treatment, and recommended a Murphy conservatorship.

With Christopher B.’s release imminent and the prosecutor unable to file a criminal information because of the stay of proceedings, the prosecutor instead obtained a new grand jury indictment on the same charges in order to establish the criminal proceedings prerequisite to a Murphy conservatorship.

You might be thinking that the indictment maneuver involved some sleight-of-hand, but it was perfectly legitimate. The sleight-of-hand wasn’t attempted until later (though I am not alleging it was intentional sleight-of-hand), after the prosecutor agreed to have the court dismiss the “charges” against Christopher B. Apparently recognizing after the fact that the dismissal of the charges would eliminate the prerequisite for a Murphy conservatorship, the prosecutor asked the court to “clarify” its ruling so that it dismissed only the original complaint and not the subsequent indictment. Even though Christopher B.’s defense counsel acquiesced to this request, that wasn’t the end of the matter.

In the conservatorship proceeding, Christopher B. argued that there was insufficient evidence of the prerequisite pending criminal proceeding. But wait, you say to yourself, didn’t the criminal court clarify its order to specify that the dismissal applied only to the complaint and not the indictment? The Court of Appeal doesn’t buy that for one minute, finding that this amounted to much more than a clarification:

In the present case, the criminal court issued an order of dismissal unambiguously dismissing the entire case at the request of the prosecution. Having realized the effect on the continued viability of the conservatorship proceeding, the prosecutor then sought on the next day to convince the criminal court to “clarify” that its ruling applied only to the underlying complaint. (It is unclear why the prosecutor chose to pursue this subterfuge rather than take the straightforward route of seeking a reindictment; at oral argument the parties did not explore, beyond conclusory assertions with limited analysis, whether a second prosecution would have been time barred.)

(Emphasis added.) In other words, this was not merely a clerical correction, which a trial court can always make. This was a correction of judicial error of a final judgment, something the criminal trial court had no jurisdiction to do. Calling the criminal trial court’s conduct “transparent efforts to garb its reconsideration of its dismissal of the criminal case in the cloak of “interpreting” an otherwise unambiguous dismissal order,” the Court of Appeal finds that the trial court lacked jurisdiction to correct the judgment, the original judgment dismissing all charges (thus applicable to the complaint and the indictment) stands, and there is thus no evidence of a pending criminal proceeding, requiring that the order establishing the Murphy conservatorship be reversed.

The lesson of Christopher B. is that a trial court’s “clarification” of a ruling must be closely examined to see if it implicates jurisdictional concerns. Litigators should consider this when seeking or opposing such clarification, and lawyers on appeal should give such “clarifications” special scrutiny.

The kitchen sink has no place on appeal

We’ve all heard of doctors lamenting the need to order lots of tests for the most mundane symptoms in order to protect themselves from malpractice lawsuits. Are lawyers exhibiting equivalent behavior?

Last week, a post at the Lawyerist blog (Want To Destroy Your Case? Throw In The Kitchen Sink.) featured a federal district court decision adopting the recommendations of the magistrate judge to order sanctions all around in a sexual harassment lawsuit — i.e., all of the attorneys on both sides had monetary sanctions imposed against them. On the plaintiff’s side, the attorneys were sanctioned for what Lawyerist called “evidence-free sexual harassment and retaliation allegations.” On the defense side, the attorneys representing the employer objected that they were being sanctioned merely for aggressively defending their client, but the district court noted that “there is a difference between a vigorous, effective defense and the kind of gross overlitigation and unreasonable and vexatious multiplication of proceedings which occurred here.”

Aside from sanctions, the litigation tactics summarized by the district court ( and detailed in the magistrate judge’s report) posed the risk that the better points in each side’s case got lost in the noise of all the unnecessary chatter.

That risk is also quite high, and arguably higher, when similar tactics are adopted in an appeal. In trial proceedings, various “overlitigation” tactics might be employed piecemeal over time, and the occasional golden nugget has a chance to stand out because it is presented in relative isolation. In an appeal, however, the appellant’s opening brief hits the appellate court with all of his arguments at one time, which might make it harder for the decent argument to stand out from the clutter.

While I suspect that the problem of raising too many issues in an opening brief arises most often when trial attorneys continue to represent their clients on appeal and are unable to “let go” of certain pet issues that have no place in the appellate court, or when the appellant has an inexperienced lawyer or is self-represented on appeal, even veteran appellate lawyers have to struggle with issue selection. Any time I come up with more than three or four arguments to make in an appeal, I get suspicious of my own analysis, and I consider very carefully whether all of the issues should be raised.*

I think that lawyers that forego any careful consideration of how to narrow the issues, and wind up throwing in the kitchen sink, might be depending on the good graces of the appellate court to pluck the meritorious needles out of the legal haystacks presented in their briefs. Appellate judges don’t simply throw up their hands and discount every argument raised by an appellant every time an opening brief contains a lot of different arguments that seem unmeritorious at first. Aside from the matter of professional integrity, there’s also the matter of having to justify their ruling in a written opinion, so you can bet they spend time trying to decide if there is a meritorious argument in the bunch.

Perhaps you’re thinking, As long as the court is going to look for my best arguments anyway, what’s the risk? I’ll throw in everything and let the court sort it out. The risk is that you might actually conceal your best arguments. Appellate judges (and their research attorneys) are smart, but they are not infallible. Clutter your brief enough, and the one argument that actually stood a chance at winning might not be recognized. And, if none of your arguments is any good, I suspect you are better off minimizing their number. A brief containing 15 meritless arguments is probably more likely to draw monetary sanctions than a brief containing just one or two meritless arguments, as the court will consider the former a greater waste of its time and the number of meritless arguments may be seen as evidence of the frivolousness of the appeal.

UPDATE (9/29/15): At his Briefly Writing blog, Alabama appellate lawyer Michael Skotnicki shares some related thoughts. In a post called The Risks of a “Hinge Point” Appellate Argumenthe comments on the ultimate narrowing of issues: asserting a single issue on appeal.

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*In some complex cases, of course, more complex briefing is required. Consider, for example, the brief proffered on appeal by the defense team for former Enron CEO Jeff Skilling: the Fifth Circuit Court of Appeals gave them permission to file a brief 58,922 words long — more than four times as long as normally permitted under the rules — which generated quite a bit of buzz on legal blogs. But Skilling was convicted of 19 counts after a three-month trial and the record on appeal approached 47,000 pages; your average appeal is not going to be that complex. (To put the length of Skilling’s brief in perspective, consider that George Orwell’s Animal Farm is less than 30,000 words long, and Lord of the Flies is less than 63,000 words long; of course, some novels are hundreds of thousands of words long.)

Language help for everyone, not just lawyers

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

My favorite in the list (emphasis and brackets in original):

Irregardless is not a word but a portmanteau of regardless and irrespective. [Note: Pinker acknowledges that certain schools of thought regard “irregardless” as simply non-standard, but he insists it should not even be granted that.]

Correct: Regardless of how you feel, it’s objectively the wrong decision. / Everyone gets a vote, irrespective of their position.

This is my favorite for two reasons.

First, in a list of misconceptions about the correct use of some very common words, use of the word “portmanteau” is hilarious.  I confess I had to look it up. If someone had thrown that word at me without any context, I would have guessed it is a wine.

Second, I agree with Pinker that “irregardless” should not be “granted” the status of non-standard usage. The word drives me crazy.

But that horse has already left the barn. A few years ago, I heard on the radio that dictionaries add new words every year. In itself, that is not surprising. Often, the added words are recently coined slang terms that have gained widespread usage, such as photobomb. Such words have probably been defined in the Urban Dictionary for years before they finally make it to a mainstream dictionary. But the reason this was covered in the radio news was because the word “irregardless” was added by a mainstream dictionary that year, with a full acknowledgment that its normal usage was grammatically incorrect, and that it was nonetheless added because its misuse was so widespread. It seems that if a word is used incorrectly often enough and long enough, it earns dictionary status.

This is how language evolves, I suppose. But if English keeps evolving this way, no one is going to understand what anybody else is saying.

My second favorite on the list:

Literally means in actual fact and does not mean figuratively.

Correct: I didn’t mean for you to literally run over here. / I’d rather die than listen to another one of his lectures — figuratively speaking, of course!

Misuse of the word “literally” in place of “figuratively,” like any use of “irregardless,” drives me crazy — figuratively, of course. If it bothers you as much as it bothers me, you can express that through t-shirts. There seem to be enough t-shirts on the topic to wear a different design every day of the week. Literally.

You can see more of the list at Business Insider.

OMG! Can you imagine writing an argument in the style of an email or a text?

If not, then why write emails and texts the way you do?

In this article at The Federalist, staff writer Philip Wegmann takes millennials and curmudgeons alike to task for degrading the quality of written communications.

The piece starts with this:

On the floor of the Senate, surrounded by elected officials and important dignitaries, an eccentric inventor started texting.

On May 24, 1844, with an electrical wire strung from DC to Baltimore, Samuel Morse transmitted the first telegraph, forever transforming the world. Reflecting on the divine prov­idence of this tech­no­logical leap forward, Morse tapped out a message of dashes and dots that read, “What hath God wrought?”

Now Kelly texts Becky, “OMG! Look at her butt!” and businessmen email, “see attached,” squandering our great inheritance with an incessant electroshock torture of the English language. Multigenerational murder, this linguistic abuse unites and indicts the young and the old.

I’m starting to like this guy. “Multigenerational murder” and “linguistic abuse” are pretty strong terms, but Wegmann does his best to support them with examples of corporate email abuse and texting, the latter of which he describes as “the most prominent vehicle for linguistic manure.” He urges curmudgeons to clean up their own acts before complaining about millennials (of which he is one), then asks for everyone to come together to solve the “moral crisis” of the “abysmal state of language in email and texts,” before closing with this:

Looking back, will our children read through our love letters and discover our professional triumphs? Will they sift through garbled texts and impersonal emails in desperate search of some greater meaning? Or, even worse, will they shake their heads as they discover how their bickering parents and grandparents made fools of themselves one email, tweet, and text at a time?

Every time we press send, we decide what God hath wrought, we influence whether advances in communication amount to a blessing or a curse. Emails and texts can elevate our language and humanity, or they can turn us into sentient beasts beating on keyboards and talking past one another.

Millennials and curmudgeons should work to save language. The choice is ours to make together.

Jeez, now I’m thinking that I don’t just like this guy, I love this guy!

Wegmann’s article may explain what I have been feeling intuitively to this point, as well as why I engage in some very “old school” communications. I send friends and family letters handwritten with a fountain pen. Soon after I meet someone I would like to keep in touch with as part of my professional network, I send that person a note handwritten with a fountain pen on personalized embossed stationery. I don’t know if those notes have generated any business, but I’ve heard from almost all the recipients about how delighted they were, and how unusual it was, to receive a handwritten note, and that’s enough satisfaction for me. I like to think that my habits will survive even if the decline Wegmann perceives continues apace.

I’m sure there are plenty of people who could mount a credible defense against Wegmann’s charges (as some of the commenters on the article do), and even I recognize the convenience of shorthand (at least in texting), and justifications for texting in general. My feelings are not a dislike for technology generally. (You may recall that I recently disclaimed being a Luddite.) I like technology, but I find myself more resistant to using it for communications. I know that it is somewhat ironic for a blogger to lament electronic communication, but I like to think that I don’t let my blog writing descend to the level lamented by Wegmann. I admit that I tend to slack off somewhat in blogging and emails. I use more colloquialisms than I would in other professional writing, and I use contractions. I think that’s about as far as I go, but if any readers wish to contend otherwise, feel free to use the comments to point out my other flaws.

Note: Don’t refuse to click the link to the article just because The Federalist is very political and you may not agree with its politics. There is nothing political in the piece.

UPDATE: Well, that didn’t take long: another writer at The Federalist posts her response to Wegmann in an article titled Get Used To It: Emails Are Here For Good, with the subheading, “Hating on email is a misplaced frustration. Email isn’t the bad guy, we are. But curt messages or sloppy grammar aren’t a new problem.”

You can’t change the rules on appeal just because you don’t like the outcome at trial: how judicial estoppel can foil your appeal

California trial courts classify civil cases as either “limited jurisdiction” or “unlimited jurisdiction,” depending on the amount in dispute. If the amount in dispute is $25,000 or less, the case is a limited jurisdiction case. If the amount in dispute is more than $25,000, it is an unlimited jurisdiction case. Thus, a court in a limited jurisdiction case cannot award more than $25,000  . . . except under the quirky circumstances of AP-Colton, LLC v. Ohaerie, case no. E059505 (4th Dist., Sept. 15, 2015).

AP-Colton is a commercial landlord-tenant dispute, in which the landlord originally sued to evict the tenants and for damages of less than $25,000. The tenants surrendered the premises, then cross-complained for: one million dollars!

At that point, the case should have become an unlimited civil case, right? The problem is that the tenants never paid the $140 “reclassification fee” necessary to convert the case from limited to unlimited status, so the clerk never reclassified the case. (Code Civ. Proc., § 403.060, subd. (b).) When the landlord amended its complaint to seek in excess of $25,000, it presumed the case had already been reclassified.

Starting with the filing of the tenants’ cross-complaint, all the parties identified the case as “unlimited” in the captions of their pleadings, and the tenants put the same label on a case management statement. The trial court entered a judgment against the tenants for about $120,000.

On appeal, the tenants contended that the judgment had to be reversed because the case had never been reclassified, the case was thus a limited one, and the judgment therefor could not exceed $25,000. Would such a result seem equitable to you, considering that the tenants were the ones to identify the case as unlimited and maintained that fiction all the way through judgment?

The Court of Appeal doesn’t think so. It invokes the equitable doctrine of judicial estoppel to prevent the tenants from benefiting from their change of position. They had, after all, contended the case was unlimited from the moment they filed their cross-complaint, and maintained that position through the entry of judgment. In other words, so long as the tenants still had a chance of winning in excess of $25,000, they maintained the case was unclassified. Once they lost, they changed their tune and tried to limit the judgment against them to the limited case limit of $25,000. Under the doctrine of judicial estoppel, a party cannot successfully take one factual position in judicial proceedings, then take a contrary factual position in later proceedings; the party is bound to its earlier position, so long as it was not the result of ignorance, fraud or mistake. The Court of Appeal finds that the doctrine applies here to preclude the tenants from taking the position that the case was a limited case.

Where was the requisite “success” the tenants had in asserting that the case was unlimited? Well, it does not take much to meet that threshold. A party’s earlier position is a “success” if “the tribunal adopted the position or accepted it as true[.]” Most times, that means the court’s adoption of the position resulted in some victory or benefit, such as a ruling in that party’s favor. Here, however, all it took to establish success was that the trial court had tried the case as an unlimited case and awarded damages accordingly against the party asserting the position. Some success! But in the judicial estoppel sense, it was a success because the court adopted the position that the case was unlimited.

Judicial estoppel does not apply if the earlier position was taken because of fraud, ignorance, or mistake. Since the tenants represented themselves from the beginning of the case to the entry of judgment in the trial court, one would think they might plead ignorance that their failure to pay the fee kept the case a limited one. Surprisingly, however, they apparently never moved to vacate the judgment on that ground (arguably forfeiting the argument), and the Court of Appeal notes that the tenants “never claimed” the benefit of this exception, even on appeal.

Jargon-filled, academic writing has no place in your briefing on appeal — but does it have its place?

Maybe so, according to Professor Cass Sunstein of Harvard Law School, if this abstract for his article summarizes it accurately:

Many people, including many lawyers and judges, disparage law reviews (and the books that sometimes result from them) on the ground that they often deal with abstruse topics, of little interest to the bar, and are sometimes full of jargon-filled, excessively academic, and sometimes impenetrable writing. Some of the objections are warranted, but at their best, law reviews show a high level of rigor, discipline, and care; they have a kind of internal morality. What might seem to be jargon is often a product of specialization, similar to what is observed in other fields (such as economics, psychology, and philosophy). Much academic writing in law is not intended for the bar, at least not in the short-term, but that is not a problem: Such writing is meant to add to the stock of knowledge. If it succeeds, it can have significant long-term effects, potentially affecting what everyone takes to be “common sense.”

Professor Sunstein’s paper is called In Praise of Law Reviews (And Jargon-Filled, Academic Writing), and is available as a free download at the Social Science Research Network.

“Close” counts in horseshoes and hand grenades, but not when it comes to identifying “new” evidence in a new trial motion

For purposes of a new trial motion, evidence is considered “newly discovered” if the party seeking the new trial “could not, with reasonable diligence, have discovered and produced [the evidence] at trial.” (Code Civ. proc., § 657, subd. 4.) Suppose the evidence is available just a few days before trial, but expert analysis can’t be completed until afterward?

That’s easy, you day. It’s trial, for crying out loud! You get your expert on it right away!

Let’s see if your answer is the same under the facts of Shiffer v. CBS Corp., case no. A139388 (1st Dist., Sept. 8, 2015), an asbestos exposure case, in which the new trial motion was filed after the defendant prevailed on its summary judgment motion rather than after a trial. In opposition to the summary judgment motion, the plaintiff’s proffered evidence of his “bystander” exposure to asbestos during the installation of piping insulation at a power plant, but it was considered inadequate.

When plaintiff moved for a new trial, he proffered a new declaration from one of his experts, dated two weeks after the summary judgment hearing, that asserted a new theory of “re-entrainment” exposure (asbestos fibers re-entering the air upon being disturbed). The expert based his analysis on two documents plaintiff had received in discovery about a month prior to the summary judgment hearing and the deposition testimony of one of defendant’s experts, who was deposed about the documents four days before the hearing. The expert had signed his original declaration in opposition to summary judgment between the time plaintiff received the documents and the deposition of defendant’s expert, which plaintiff’s expert apparently did not attend.

That’s a tight timeline, to be sure, if the opinion could only be proffered after the deposition of the defense expert, but all of the information necessary for the revised opinion was in plaintiff’s hands prior to the hearing, and that is enough for the court to find that there is no new evidence here. The court cited a case holding that “depositions conducted on [the] eve of summary judgment do not generate new facts.”

The court states there was “no justification for the delay,” but does not detail any argument by which plaintiff tried to justify it. One presumes that plaintiff argued that the documents received a month before the hearing did not allow for the supplemental opinion without the testimony of the defense expert, given just days before the hearing. But even if the plaintiffs could establish this, it seems like the court would have found the plaintiff had enough lead time, for the court also notes that the transcript of the deposition taken just days before the hearing was only 37 pages long.

Lesson learned: Don’t put off discovery to the last minute, especially when opposing a summary judgment motion. Had these depositions been conducted just a week or two earlier, plaintiff’s expert likely would have been able to formulate his conclusions prior to the hearing. If you do get jammed on discovery, at least get the rough transcripts to your experts. And, finally, why not have your expert attend the deposition of his counterpart? Yes, it will cost a few dollars, but they would have been dollars well spent in this case.

No appeal from order vacating partial arbitration award

One of the frustrations for parties forced to arbitrate their claims rather than pursue them in court is the unavailability of a direct route of appeal from the arbitration award. Generally, the only way to get out from under an adverse award is to petition the superior court to vacate the award (Code Civ. Proc., § 1285 et seq.), and then only on very limited grounds such as fraud, corruption, or misconduct by the arbitrator, generally unrelated to the substantive merits of the decision. If you’re on the other side — i.e., you were the prevailing party in the arbitration — you can take some comfort from the fact that if the loser in arbitration successfully gets the award vacated, you can appeal that order, unless it includes an order for a rehearing in arbitration. (Code Civ. Proc., § 1294, subd. (c).)

But that’s not always the case. In a decision late last year, Judge v. Nijjar Realty, Inc. (2014) 232 Cal.App.4th 619, the Court of Appeal held that when the arbitration award that is vacated fails to dispose of all arbitrable issues, the order vacating the partial award is not appealable. The appellant had procured a “clause construction award” that construed the arbitration clause to allow arbitration of class and representative claims but left the merits of those claims to later hearings. Respondent successfully petitioned the trial court to vacate the award, and the appeal followed.

After some interesting discussion about the degree to which the Federal Arbitration Act (9 U.S.C. § 1 et seq.) governs California arbitration procedure, the court finds that appealability of the order is governed by California state law rather then the FAA, and turns next to to the language in the California Arbitration Act. (Code Civ. Proc., § 1280 et seq.) Noting the plain language of Code of Civil Procedure section 1294, subdivision (c), that an aggrieved party may appeal from an “order vacating an award unless a rehearing in arbitration is ordered,” and further noting that no rehearing was ordered, the court notes that the issue presented  is “whether the trial court’s order in this case vacated an arbitration ‘award.’ ”

If that seems like a slam dunk, think again. The CAA provides that an “award” must “include a determination of all the questions submitted to the arbitrators the decision of which is necessary in order to determine the controversy.” Since the order in this case concerned only clause construction and left other issues for future hearings, there was no appeal from the order vacating the “award.”

This closely parallels the requirement that a superior court judgment be “final,” resolving all issues among the parties, in order to be appealable. The court notes that the same policy reasons underscoring this “one final judgment” rule also support requiring a final arbitration award as a condition of appeal from an order vacating it. Without such a limitation, the court reasons, all manner of interim arbitration awards could result in appeal from orders vacating them, defeating arbitration’s intended role as “a quick and efficient form of alternative dispute resolution.” Moreover, says the court, it would be anomalous to allow appeal from orders vacating arbitration awards when no appeal would lie from their counterparts in a civil action.

The obvious question left unanswered by Judge is whether the superior court has jurisdiction to hear a petition to confirm or vacate an interim award in the first place. The court explicitly noted the issue was left hanging, since it had no occasion to decide it, but opined that a superior court’s jurisdiction in such a case is doubtful, and implicitly encouraged the appellant to file a motion fore reconsideration in the trial court upon remand. (232 Cal.App.4th at p. 634, fn. 12.) From what I can tell from the somewhat cryptic online docket for the superior court, it looks like the appellant did just that, and the motion is still under consideration as of this writing. Another trip to the Court of Appeal in the near future seems likely.

Construction defect case demonstrates a “two-fer” on grounds for obtaining review by petition for writ of mandamus

I frequently get calls from prospective clients who are “rarin’ to go” on a writ petition to challenge a trial court ruling that has them outraged but is not immediately appealable. That “rarin’ to go” attitude usually does not last beyond the point where I tell them that more than 90% of writ petitions are summarily dismissed without the petitioner ever being heard on the merits. That news usually significantly diminishes the will to petition the Court of Appeal, even as it intensifies the prospect’s outrage, as the prospect feels aggrieved not just by the trial court ruling but also by the fact that the odds of any recourse are so slim.

That’s because writ review in the Court of Appeal is discretionary. Even before convincing the appellate court the trial court erred, the petitioner must convince the appellate court that its petition should be heard on the merits. One can do this by demonstrating that an appeal after final judgment would afford inadequate relief (Code Civ. Proc., § 1086), that the ruling threatens disclosure of privileged documents (or otherwise rings a bell that cannot be unrung), or that the issue presented is one of first impression on which the trial courts require guidance or which is important to a state industry.

In McMillin Albany LLC v. Superior Court, case no. F069370 (5th Dist., Aug. 27, 2015), the Court of Appeal spells out plainly two reasons it granted review in a construction defect case in which homeowners sued their contractor. The contractor sought a stay of the action until the plaintiffs complied with the prelitigation procedures of the Right to Repair Act (the “Act,” Civ. Code, §§ 895 et seq.), which requires the plaintiffs to “give notice of the claimed defects to the builder and engage in a nonadversarial prelitigation procedure, which affords the builder an opportunity to attempt to repair the defects.” Plaintiffs broke off negotiations regarding a stay, dismissed their statutory cause of action under the Act, and asserted that they were not obligated to comply with the prelitigation procedures of the Act to pursue their remaining common law causes of action. The contractor moved for a stay of proceedings pending compliance with the prelitigation procedures and, when the trial court denied it, petitioned the Court of Appeal for a writ of mandate directing the trial court to vacate its ruling and grant the motion for a stay.

Before holding that the plaintiffs were still required to comply with the Act’s prelitigation procedures despite dismissing their only cause of action asserted under the Act, the court gave a very clear statement of why it granted review on the merits. First, the contractor had “no plain, speedy, and adequate remedy, in the ordinary course of law.” (Code Civ. Proc., § 1086.) The court points out that if the contractor were forced to wait for a final judgment to challenge the ruling, it would lose the benefits of any stay it was entitled to pending compliance with prelitigation procedures, even if it prevailed on appeal. Second, the issue presented could escape review entirely if not heard in a writ proceeding, despite being “an issue of first impression, which is of interest to builders, home buyers, their attorneys, and others.” Though the court did not mention the fact, two building trade associations submitted Amicus briefs on behalf of the contractor, demonstrating the importance of the issue to a major industry.

Kudos to the court for being so straightforward in explaining why it reviewed the petition on the merits. Too often, writ opinions are ambiguous on the point.

Sixth District Court of Appeal offers the legislature some advice on amending the anti-SLAPP statute

232/365 - Smack!

A different kind of SLAP (Photo courtesy of Gabe via Compfight)

If you just lost your appeal, handled by attorneys at a high-powered law firm, with fees approaching – oh, heck, who knows, but three lawyers billing at a “BigLaw” firm have to run up a pretty hefty bill on a case potentially worth billions of dollars – you might not be happy with language in the introduction of the opinion characterizing your appeal as “utterly without merit” and noting that the court declined imposing sanctions only because the court did “not wish to further delay the long-overdue trial of the merits of [the] action.”

That’s exactly how the court opened its opinion in Hewlett-Packard Co. v. Oracle Corp., case no. H039507 (6th Dist. Aug. 27, 2015). If you guessed that the case is an appeal from the denial of an anti-SLAPP motion (Code Civ. Proc., § 425.16), give yourself a gold star. (Or maybe not — I mentioned anti-SLAPP in the title of this post, after all.)

The opinion is a good read if, like many, you believe that use of the anti-SLAPP statute has gotten out of hand. Indeed, the opinion cites another case’s reference to the “explosion of anti-SLAPP motions.” There’s simply too much in the opinion to try to summarize it here, so I’ll refer you to it for the nitty-gritty, and note just a few highlights.

On what does the Court of Appeal blame this explosion? The availability of immediate appeal when the motion is denied, that’s what:

A major reason for this explosion is that the statute rewards the filer of an unsuccessful anti-SLAPP motion with what one court has called a “free time-out” from further litigation in the trial court.The statute does this by entitling the unsuccessful movant to immediately appeal the denial of such a motion—even one like Oracle’s, which wholly lacks merit, attacks only a small part of the plaintiff’s case, and is heard nearly two years into the lawsuit, and on the day before a scheduled trial. Such an appeal automatically stays all further trial proceedings on causes of action “affected by the motion.” This means that however unsound an anti-SLAPP motion may be, it will typically stop the entire lawsuit dead in its tracks until an appellate court completes its review.

(Footnotes and citations omitted.)

The court argues that the anti-SLAPP “cure” is worse than the disease it was meant to address — the filing of meritless suits designed to chill participation in the public arena. “It is as if a city had decided to cure an illness afflicting a few of its residents by lacing the water supply with a chemical that would indeed cure those sufferers, but would sicken a larger number of previously healthy citizens.”

The opinion closes with the court’s recommendation for amendment of the anti-SLAPP statute:

In this regard, we offer the suggestion that one simple fix might substantially reduce the motivation to abuse the anti-SLAPP procedure: Limit the right to  interlocutory appeal to denials, and allow them only where the motion (1) is filed within the allotted 60 days, and (2) would—if granted—dispose of the entire action. Where either of those conditions is lacking, the motion can rarely if ever achieve any real saving of time or money, and an appeal can only have the opposite effect. Such an amendment would limit invocation of the statute to cases where it may serve its stated purpose and greatly reduce its tactical utility in many if not most of the situations where it is now being most sorely abused.

As a “BigLaw” refugee, my favorite part of the opinion is the court’s lament that sanctions for frivolous appeals are not a very good deterrent against abuse of the anti-SLAPP statute:

But a prompt dismissal, even of a frivolous appeal, is not always feasible. In this case, HP’s motion to dismiss the appeal was supported by four volumes of exhibits, which Oracle answered with another five volumes, with the result that the motion essentially duplicated the appeal itself. Top-drawer legal representation, such as both parties have engaged here, can obscure the core frivolousness of an appeal beneath layers of artful obfuscation which only the most painstaking examination can peel away. And where the stakes are high enough—as they certainly are here, judging from the multi-billion-dollar figures put forward by HP’s experts on damages—the threat or even the certain prospect of sanctions may not alter the economic calculus that makes an anti-SLAPP motion, and ensuing appeal, so attractive.

(Emphasis added.) Sounds like Maybe Oracle got its money’s worth after all.

One last thing. Remember how it looked like Oracle had dodged the bullet of having to pay Hewlett-Packard’s attorney fees, since the Court of Appeal declined to impose sanctions? If I were Oracle, I wouldn’t quite count on it.

Friday Appellate Humor

Here’s the graphic from a good New Yorker cartoon about appeals:

whining

Click the image for the punchline

To avoid exceeding fair use, I’ve left off the punchline. Here’s a clue: there’s only one judge on the bench, so you know this cartoon depicts the trial court instead of the appellate court.

To see the punchline, click here or click the image. If you have any ideas for your own punchline, why not share them in the comments?

Some technical help for e-filing in the Court of Appeal

Screen Shot 2015-08-20 at 11.46.15 AMThis week, the Second District Court of Appeal published a terrific guide for creating electronic documents. (PDF link) The guide is broken down into a section on briefs and a section on appendices, and is meant as a technical guide, not a set of rules for filing. It is thus helpful regardless of the district your appeal is in.

The guide provides the nitty-gritty detailed steps, with illustrations, for creating, editing, and formatting documents for electronic filing, including instructions for safely and securely redacting information, adding bookmarks, and making scanned documents text-searchable, among other things. Unfortunately, instructions on hyperlinking have been deferred to a future edition.

I wouldn’t quite call it Electronic Filing for Dummies, though it will be helpful even for those who don’t know a PDF from a DOC and think Adobe Acrobat is a circus performer. I consider myself pretty tech-savvy on PDF creation and manipulation, and I still learned from it.

I think the guide will be particularly helpful for solos, who don’t always have the staff to handle the tech side of things and must rely on a DYI approach. However, the use of Adobe Acrobat, the PDF application used in the guide, can be cost-prohibitive for solos on a budget (though I believe it is now available through a monthly subscription). Keep in mind that there are alternative, less expensive PDF applications that can probably do everything you need for electronic filing, including PDF Pen for the Mac and Nitro Pro for the PC. (I have used both, but I am not endorsing either of them. Both offer free trials, so you can be sure they do what you need before purchasing.) I use Acrobat now because it came free with my Fujitsu ScanSnap scanner (an awesome piece of hardware).

Don’t forget that e-filing practices are not uniform throughout the state. Always check the particular procedures for your district. But this guide should help you no matter where you practice.

A hat tip to H. Thomas Watson of Horwitz & Levy for getting word of this out through the L. A. County Bar Association Appellate Courts Section listserv.

The Court of Appeal Time Machine – Interest Calculations on Modified Judgments

time_machine_04

Still from The Time Machine (1960)

If you obtained a judgment against your former client for over $7.7 million, and had the court of appeal knock it down to around $1.7 million, and the trial court entered judgment in that reduced amount 14 months after the date of the original judgment, you would want interest to run on the judgment — even from the reduced amount — from the date of the original judgment, right? Of course you would. After all, 14 months of interest at a simple 10% on the $1.7 million amount is nearly $200,000. That’s not pocket change. (Well, not for me, anyway.)

But in Chodos v. Borman, case no. B260326 (2d Dist. August 18, 2015), the trial court ordered that interest on the judgment was to run only from the date of entry of the later judgment entered after the original appeal. That’s $200,000 up in smoke. Chodos, the judgment creditor, appealed.

And wins. The Court of Appeal points out that whether interest runs from the date of the original judgment or the date of the later judgment depends on whether its disposition in the original appeal amounted to a reversal of the judgment (in which case interest would run from the later judgment only) or merely a modification of the judgment (in which case the interest would run from the date of the original judgment).

Well, that should be an easy question, right? After all, the court knows what it did in the last appeal. But let’s just say it was not obvious to everyone. The trial court got it wrong.

As in many areas of the law, one must look past the form of the Court of Appeal’s prior opinion and identify its substance. The court had phrased its disposition in the prior appeal as a reversal:

The judgment is reversed and the matter is remanded to the trial court with instructions to enter a new judgment based on that portion of the special verdict form that awarded the attorney a $1.8 million lodestar amount based on the jury’s finding of a reasonable hourly rate of $1,000 and a reasonable number of hours expended on the two divorce cases and the Marvin action of 1,800. As it did in the original judgment, the trial court shall make adjustments to the $1.8 million award by adding the amount of $24,921 and deducting the amount of $107,000.

Despite the use of the word “reversed,” however, the disposition was really a mere modification of the judgment. It directed the trial court to enter a judgment in favor of the original prevailing party in a reduced amount, rather than returning the case to theatrical court for any further hearings on the amount of the judgment.

Thus, appellant is able to “return” to the date of the original judgment via the Court of Appeal Time Machine, and watch the interest accrue from that date.

The standard of review on appeal regarding enforceability of arbitration clauses

questions-1As I’ve mentioned before, the standard of review is not always clear. One sometimes has to “drill down” past the obvious, and the “abuse of discretion” standard is full of nuance. The parties’ briefs may even fight over which is the correct standard of review to apply, or the cases may be split on the issue. Sometimes, where the standard is in dispute, it doesn’t matter, because the outcome is the same under either standard.

There is no question as to what standard of review applies in yesterday’s decision in Carlson v. Home Team Pest Defense, Inc., case no. A142219 (1st Dist., August 17, 2015), but the case nonetheless has a lesson in careful application of the standard of review. The appeal was from an order denying a motion to compel arbitration. The court begins its discussion of the standard of review by announcing “There is no uniform standard of review for evaluating an order denying a motion to compel arbitration.”

Well, if there is no uniform standard, how do you decide what standard applies to your case? It’s hard to answer that question any more succinctly than the court, so I’ll let the court do it:

If the court’s order is based on a decision of fact, then we adopt a substantial evidence standard. [Citations.] Alternatively, if the court’s denial rests solely on a decision of law, then a de novo standard of review is employed.

In this case the trial court made factual findings based on at least some material disputed evidence. From those findings, the trial court concluded that Home’s Agreement was both procedurally and substantively unconscionable and should not be enforced. Accordingly, [t]o the extent there are material facts in dispute, we accept the trial court’s resolution of disputed facts when supported by substantial evidence; we presume the court found every fact and drew every permissible inference necessary to support its judgment.

(Citations and internal quotation marks omitted.)

Some easy examples are cited in one of the cases cited in Carlson. In Robertson v. Health Net of California, Inc. (2005) 132 Cal.App.4th 1419, the order denying the motion to compel arbitration was based on the trial court’s conclusion that the arbitration agreement violated a statute. Since this presented a purely legal question of statutory interpretation, review was de novo. Robertson cited Craig v. Brown & Root, Inc. (2000) 84 Cal.App.4th 416 as an example where review for substantial evidence was appropriate, because the order in that case was based on the trial court’s factual finding that the parties never reached agreement on arbitration.

Craig suggests that this analysis is apparently required whenever the validity of an arbitration clause is at issue on appeal, not just on appeals from orders denying a motion to compel arbitration. Craig was an appeal from a final judgment confirming an arbitration award after a motion to compel arbitration had been granted. Yet, Robertson cited to it as an example of how to apply the standard of review.