And I mean obsession in a good way. I never thought I’d get out-geeked on the subject of jurisdiction, and especially not on the subject of appellate jurisdiction, but I think Jones Day partner Mark Herrmann pulled it off today at his Drug & Device Law blog. In a long joint post there regarding when an appellate court may review an order remanding a case back to the state court from which it was removed, Herrmann and his blog partner Jim Beck of Dechert LLP not only chronicle the history of Supreme Court jurisprudence in this area and propose sensible reform, they start their discussion by citing Herrmann’s 22-year-old law review article on the subject as evidence that he was “obsessessed with this question [of when review is allowed].” I’ve described myself as a jurisdictional “geek” plenty of times, but never as “obsessed”!

Substantively, the post is remarkably thorough and fun to read. (Herrman’s obsession isn’t the only humorous point.) It concludes with interesting detail on the most recent Supreme Court decision and a discussion of practical consequences.

(For Ninth Circuit practitioners, it may be interesting to note that the trigger for Herrmann’s and Beck’s post was last month’s Supreme Court decision in Carlsbad Technology, Inc. v. HIF Bio, Inc., 556 U.S. __ (2009). Carlsbad came from the Federal Circuit, which had split from several others, including the Ninth, to hold that 28 USC § 1447(d) precludes appellate review of a remand order based on the district court’s discretionary decision under 28 USC § 1367(c) not to assert supplemental jurisdiction over state claims. The Supreme Court’s reversal vindicates the Ninth Circuit’s wisdom (not to mention adherence to stare decisis) when it declined the invitation to reconsider its position in last year’s California Dept. of Water v. Powerex ___ F.3d ___ (9th Cir. 2008). [I'll update that cite for you later when I have access to the reporters.] By the time of the California Dept. of Water case, the rule was well-established in the Ninth Circuit that review was available by petition for writ of mandate. However, the Ninth was forced by intervening Supreme Court authority to find that review is available by appeal. My coverage of Powerex is here.)

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

Clinicians, however, have developed theories of client-centered lawyering which require that the attorney uncover their client’s values, goals and objectives that may go well beyond the discrete litigation at hand. Client-centeredness encourages the attorney to incorporate this information into his/her advocacy on behalf of their client. This article advocates incorporating select principles from client-centered lawyering into legal writing. The primary purpose for this application is persuasion and advocacy, not necessarily empowering the disenfranchised client.

This is a very interesting concept, and certainly one that cuts against conventional legal writing wisdom. It also requires lawyers to step back from the “I’m the lawyer, I know what I’m doing, leave it to me” approach to client relations. Think how much happier your clients will be knowing not only that their values are being incorporated into the project, but that incorporating those values actually makes for better advocacy.

For an appellant whose mail slot looks like the one pictured, there was an important decision yesterday.

The California Supreme Court reached a sensible decision in Silverbrand v. County of Los Angeles, case no. S143929 (Apr. 23, 2009), in which the court holds that a prisoner’s pro se notice of appeal in a civil case is timely filed upon deposit with prison authorities for mailing. This brings the rule for timely filing of an appeal by a pro se prisoner in a civil case in line with the rule for a pro se prisoner’s filing of an appeal in a criminal case.

Silverbrand’s medical malpractice action against the county and jail medical personnel had been decided against him by summary judgment. He filed his notice of appeal by handing a correctly addressed, postage-paid envelope to prison officials the day before his deadline to file, but it did not reach the court until 2 days after the deadline. The court of appeal dismissed the appeal.

Here’s how the court introduced its decision reversing the court of appeal:

The prison-delivery rule — as most recently articulated by this court — provides that a self-represented prisoner’s notice of appeal in a criminal case is deemed timely filed if, within the relevant period set forth in the California Rules of Court, the notice is delivered to prison authorities pursuant to the procedures established for prisoner mail.  (See In re Jordan (1992) 4 Cal.4th 116 (Jordan).) The question before us in this case is whether the prison-delivery rule properly applies to a self-represented prisoner’s filing of a notice of appeal in a civil case.

Rooted in common law and well established in California jurisprudence, the prison-delivery rule, also referred to as the prison mailbox rule, “ensures that an unrepresented defendant, confined during the period allowed for the filing of an appeal, is accorded an opportunity to comply with the filing requirements fully comparable to that provided to a defendant who is represented by counsel or who is not confined.” (Jordan, supra, 4 Cal.4th at p. 119.)  It also “furthers the efficient use of judicial resources by establishing a ‘bright-line’ test that permits courts to avoid the substantial administrative burden that would be imposed were courts required to determine, on case-by-case basis, whether a prisoner’s notice of appeal was delivered to prison authorities ‘sufficiently in advance of the filing deadline’ to permit the timely filing of the notice in the county clerk’s office.”  (Ibid.)

There appears to be no sound basis for construing the relevant case law and rules of court as maintaining one rule in this context for criminal appeals and another for civil appeals.  Self-represented prisoners — who can file a notice of appeal only by delivering it to prison authorities for mailing — should be allowed the same opportunity as nonprisoners and prisoners with counsel to pursue their appellate rights, regardless of the nature of the appeal pursued.  Broadening the prison-delivery rule to include civil notices of appeal also should result in additional administrative benefits both for trial courts and reviewing courts, thereby improving judicial efficiency.  Therefore, for the same reasons that persuaded us that the prison-delivery rule should apply to the filing of a notice of appeal in a criminal case, we are persuaded that a notice of appeal by an incarcerated self-represented litigant in a civil case should be deemed filed as of the date the prisoner properly submitted the notice to prison authorities for forwarding to the clerk of the superior court.

That all seems rather obvious, doesn’t it? But it wasn’t obvious at all from the relevant rules of court, as the rule for criminal appeals (rule 8.308) codifies (at subsection (e)) the prison-delivery rule, while the rule for civil appeals (rule 8.104) does not. That kind of distinction usually leads a court to infer that the drafter deliberately made the rules different, and that’s exactly what the court of appeal understandably concluded in dismissing Silverbrand’s appeal.

You’ve read warnings from me time and again that the notice of appeal deadline is a jurisdictional limitation. Miss it, and you’re stuck. There is no relief.

But here, the Supremes note a tension between the unforgiving jurisdiction nature of the deadline and a policy of according the right to appeal “in doubtful cases ‘when such can be accomplished without doing violence to applicable rules.’ ” (Citation omitted.) This policy led to the development of the prison-delivery rule in the first place. Recapping that history and noting a national trend toward application of the prison-delivery rule in civil cases, the court reaches the conclusion summarized in the block quote above: there is no good reason to treat civil appeals different from criminal appeals.

The court overcomes the literal and harsh application of the court rule by noting that the rationale of the prison-delivery is not that it extends the deadline for filing to the date the notice of appeal is actually received by the court, but rather because the rule deems the notice of appeal constructively filed on the date of delivery to prison officials for mailing, despite the fact that it does not reach the court until later. I thought the opinion did some somersaults in its analysis of the rules, but was convinced nonetheless.

Please note, all you civil litigants, even self-represented ones, this does not mean your deposit in a mailbox on the last day for filing will suffice.  Remember, the court was deciding the effect of a prison-delivery rule.  If your mailbox doesn’t resemble the one pictured, you need to get your notice of appeal to the court — not the mailbox — on time.

It’s also worth noting that Silverbrand had the benefit of top-notch counsel in the Supreme Court at a bargain price (as in “free”). The Supremes appointed appellate powerhouse Horvitz & Levy to represent Silverbrand, and he had three amicus briefs filed on his behalf.

UPDATE: Thanks to Horvitz & Levy for linking to this post from their website “bragging page” about the case.

(Photo courtesy of Andrew Bardwell pursuant to Creative Commons Attribution-Share Alike 2.0 Generic License.)

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

Now, an Australian court has authorized service of summons by notifying the defendant via Facebook (sidebar note at p. 10 of this PDF).

And why not? If it hasn’t already happened here, it probably will eventually. California law (Code Civ. Proc., § 415.50) already allows for service of summons by publication in newspapers in certain cases when a plaintiff shows that “the party to be served cannot with reasonable diligence be served in another manner specified in this article.” A Facebook posting is probably far more likely to actually reach the defendant than is notice by publication in a newspaper. At least so long as the defendant’s Facebook account has not gone stale.

We now have e-filing and e-service of other papers. Summonses may be the last holdout, but they can’t hold out forever.

Conceivably, service would even be possible via Twitter with a few words and a link to an online post of the summons, though I wouldn’t advocate it. Imagine seeing this tweet on your iPhone:

You’re being sued — here’s your summons: http://tinyurl. . . .

For the lighter side of social media evolution, watch this.

Hat tip: My dad.

In a dissent from a Ninth Circuit denial of en banc review in Lopez-Rodriguez v. Holder, case no. 06-70868 (9th Cir. Aug. 7, 2008, r’hng en banc denied March 27, 2009), a case concerning the application of the exclusionary rule to civil deportation proceedings, Judge Bea authors an opinion that puts his view of the panel decision — specifically,the reasoning by which the panel reached its decision — rather bluntly.  

In [INS v. Lopez-]Mendoza [, 468 U.S. 1032 (1984)], the Supreme Court clearly held the exclusionary rule does not apply to bar illegally procured evidence from admission in a deportation hearing. Mendoza, 468 U.S. at 1050 (holding that the “balance between costs and benefits comes out against applying the exclusionary rule in civil deportation hearings”). The panel in Lopez-Rodriguez v. Mukasey (Rodriguez), 536 F.3d 1012 (9th Cir. 2008), held precisely the opposite. How we got there is an interesting— and perhaps cautionary—tale. We seem to have turned Supreme Court plurality dicta into majority dicta simply by saying so. Then, we have applied that dicta, in a manner not consistent with the sole case cited in the dicta, to create a new rule—one never envisioned by either the Supreme Court majority or the plurality.

Judge Bea then provides detail of the 4-step analysis he claims the panel engaged in. That analysis is nicely summarized by attorney and blogger Gabriel Malor:

Step One is to dig through Supreme Court decisions for dicta (that is, non-binding editorializing) that is arguably on point. Step Two is to mischaracterize that dicta as binding and creating a new constitutional test. Step Three is to “rephrase” the new rule so as to reach wider conduct. Step Four is to impose the new rule, while acting as if it was obvious all along.

And if you don’t mind mild profanity (by today’s standards, anyway), and especially if you are usually in sync with Judge Bea, I think you’ll find it ’s worth clicking on the link to Malor’s post just to read the title, which is even more blunt.

Judge Bea’s dissent is joined by three others, including original panel member Judge Bybee, who warned in his separate concurrence with the panel opinion that Ninth Circuit precedent “has set us on a collision course with the Supreme Court.” 

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

When I read Brescia v. Angelin, case no. B204003 (2d Dist. Mar. 17, 2009), I was reminded about how Saturday Night Live once ran one a commercial parody for a product with the advertising slogan “It’s a dessert topping! It’s a floor wax!  It’s two products in one!”

How do I make that connection? Because when I was done reading the case, I thought, “It’s a dismissal after sustaining a demurrer! It’s a discovery ruling! It’s two rulings in one!”

And so did the court of appeal, though it didn’t say it in so many words.

Brescia cross-complained against respondents for trade secret misappropriation.  Code of Civil Procedure section 2019.210 requires a trade secret plaintiff to identify the trade secret “with particularity” before commencing discovery.  Respondents moved for protective orders against discovery served by Brescia, claiming that he had not adequately identified the trade secret.  Finding the initial identification inadequate, the court gave Brescia several opportunities to make more particular designations, while the hearing on the protective order motions (which were now greater in number) were continued.  During this time, the respondents also demurred to Brescia’s cross-complaint.

Eventually, the protective order motions and demurrer (as well as a motion to strike) were heard on the same date, and this is where it gets interesting.  The court goes into great detail about the exchange among counsel and the court, but summarizes it as follows:

[T]he parties, in an attempt to expedite any appeal, stipulated that if the court determined the trade secret designation insufficient, it could use respondents’ demurrer to the cross-complaint as a procedural device to dismiss Brescia’s trade secret misappropriation claim for failure to comply with section 2019.210

That should have set off alarms in everyone’s mind, but we’ll get to that in a minute. The court found the disclosure inadequate and sustained the demurrer without leave to amend.

Brescia appealed from the resulting judgment of dismissal and, notwithstanding his stipulation in the trial court that the inadequacy of the trade secret disclosure would dispose of the case, argued that the court could not use a ruling on the trade secret disclosure as a ground for sustaining the demurrer. After recounting all the ways in which the stipulated arrangement violated normal procedural rules and effectively converted an unappealable discover ruling into an appealable judgment, the court reminds Brescia of the doctrine of “invited error”: 

Nonetheless, despite these inherent problems, Brescia stipulated to the procedure used by the court, as did respondents.  Indeed, the trial court would not have used this procedure but for Brescia’s express consent.  Brescia is in the procedural posture he sought. To the extent he now challenges that posture as improper and awkward, he effectively misled the trial court into believing the procedure was acceptable to him as a means to secure immediate appellate review of the sufficiency of his section 2019.210 designation.  Thus, he cannot contend on appeal that the termination of his action against respondents was procedurally defective.  (See Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403 [doctrine of invited error applies where party induces error and, in doing so, misleads court].)

But Brescia actually prevails on the adequacy of his disclosure, so the court reverses, rejecting respondents’ contention that the demurrer gave an alternate ground for affirmance.  

Respondents argue that the alternative grounds exist to support the court’s ruling sustaining the demurrer to the cross-complaint without leave to amend:  (1) the cross-complaint fails to state facts sufficient to plead a trade secret misappropriation claim against respondents personally, and (2) Brescia’s legal theory creates an improper prior restraint on trade.   

In the unusual procedural posture of this case, we decline to address these issues.  The ruling that forms the basis for this appeal is a discovery ruling – the sufficiency of Brescia’s section 2019.210 designation.  By stipulation, the parties and the court deemed that discovery ruling to be a ground upon which the court would dispose of the cross-complaint through the procedural fiction that it formed a basis for demurrer.  We have given effect to that stipulated fiction and have addressed the merits of the section 2019.210 issue.  But we will not carry the fiction further and purport to review a ruling on a demurrer that was never truly made.  Respondents are asking us, in the first instance, to rule on their challenges to the cross-complaint and to sustain the demurrer without leave to amend.  We decline.  Respondents must first obtain a ruling on the demurrer in the trial court, which is the appropriate forum to determine in the first instance whether the demurrer states meritorious grounds, and, if so, whether leave to amend should be granted.

(Emphasis added.)

Curiously, none of the analysis talked about in this post is part of the published opinion, which is limited to the issue of the adequacy of the trade secret disclosure. The court clearly was not pleased with the stipulation, and a published decision would have announced their discouragement of such arrangements.  On the other hand, notwithstanding the court’s distaste for the arrangement, publication might have encouraged more of them.  The court did, after all, hear the appeal, and determine the merits of the underlying discovery ruling.  Other plaintiffs faced with the same unattractive alternatives to such a stipulation — waiting to appeal after final judgment or petitioning for writ relief with a greater than 90% chance of not being hard on the merits — may find the “Brescia option” attractive . . . if they learn of it.

I know the title of this post implies that you’re about to read some complaint about an illogical decision.  After all, I doubt there’s a litigator alive who hasn’t received an adverse ruling or verdict and thought, “What a load of B.S.!”  (By the way, if you ever do feel that way, it’s time to call me.)  And that’s the way I was going to write this post, until I looked at the substance of the decision and got hooked, as I usually do, by a jurisdictional question.

In re B.S., case no. E045748 (4th Dist. Mar. 17, 2009) is a case of alleged jurisdictional conflict between two divisions of a superior court — the criminal court and juvenile court — both of which (and in that order) issued restraining orders against the appellant father of the infant B.S.  The criminal court order issued on Judicial Council form CR-160, and ordered that petitioner “must not harass, strike, threaten, assault (sexually or otherwise), follow, stalk, molest, destroy or damage personal or real property, disturb the peace, keep under surveillance, or block movements of” B.S. and B.S.’s mother.  At the juvenile court hearing, appellant insisted this restraining order was enough, and that it would be improper for the juvenile court to order anything more restrictive, but that is just what the juvenile court did.  On Judicial Council form JV-250, the juvenile court entered a more restrictive restraining order that also prevented the father from contacting (with extremely limited exceptions) the mother, B.S., and the maternal grandmother and required that he keep a minimum distance between himself and any of them.

The father contended on appeal that the juvenile court lacked jurisdiction to enter the restraining order because of the pre-existing restraining order issued by the criminal court.  That was an awfully tough sell in light of the statutory scheme:

Here, the Legislature has provided that a restraining order issued by a criminal court against a defendant charged with domestic violence “has precedence in enforcement over any civil court order against the defendant . . . .”  (Pen. Code, § 136.2, subd. (e)(2).)  Thus, it evidently contemplates the issuance of a criminal restraining order, despite a preexisting civil restraining order, or vice versa. 

This precedence was not undercut by the father’s resort to the policy behind the rule of exclusive concurrent jurisdiction:

The father, invoking the policy behind the rule of exclusive concurrent jurisdiction, argues that he has been saddled with “the burden of having to deal with multiple courts and potentially conflicting orders.”  However, he has not pointed out any actual conflict between the two orders.  The criminal order does not require him to do anything that the juvenile order prohibits, or vice versa.  Admittedly, the juvenile order is more restrictive than the criminal order.  Nevertheless, it is possible for him to comply with both.  In any event, the juvenile order provided that any apparent conflict must be resolved in favor of the criminal order, thus making any actual conflict impossible. 

The father argues that the two orders are “confusing” with regard to which order takes precedence.  But not so.  The criminal order provided, “[T]his order takes precedence over any conflicting protective order . . . if the protected person is a victim of domestic violence . . . .”  The juvenile order then similarly provided, “If a criminal restraining order . . . conflicts with a juvenile restraining order . . . , a law enforcement agency must enforce the criminal order.  . . . Any nonconflicting terms of the juvenile custody or visitation order remain in full force.”  Thus, both orders consistently provided that, in the event of an actual conflict, the criminal order would take precedence.

It’s difficult to see where the father’s lawyer saw any opening here.  This rule of precedence is not merely buried in the statutes; it is part of the standard language on forms CR-160 and JV-250. Perhaps the benefit of 20/20 hindsight is to blame, but I think this had to look unpromising from the beginning.

I didn’t think we’d see them anytime soon.  I was very, very wrong.

UPDATE:  So I got to thinking . .  . I’ve got 20 or 30 years left in my legal career.  Will I see a juror’s mental telepathy about a case raised as a ground for appeal?  I don’t know, but if mental telepathy is possible, it will sure change oral argument, especially how an advocate handles questions from the court.

Too late, you’ve missed it.  But if you want to read all about the “conversation” between Dean Kenneth Starr and Justice Antonin Scalia held at Pepperdine yesterday, check out the very detailed write-up of the event  by appellate attorney Ben Shatz at En Banc.  Consider Ben the Pepperdine bureau chief, as he also had a good write-up last August on Justice Samuel Alito’s appearance there.

More accurately, I guess, trial coverage by tweet.  A reporter as been given permission by a federal judge in Kansas to pubish updates from the courtroom via Twitter.  A few of his dispatches by tweet:

— “Judge Marten is talking to reluctant witness in chambers with a court reporter transcribing the conversation.”

— “The witness who was yelling in the hallway earlier has not returned to the courthouse.”

— “Defendants are chatting and laughing among themselves.”

— “Exhibits are shown electronically. Every juror has a monitor in the box. There is a monitor at each lawyer’s table and one for the gallery.”

It won’t be long before journalism schools offer a course in “journalism in 140 characters or less.”

We’ve already seen a blogging juror become a potential issue on appeal.  But it seems unlikely we’ll see tweeting jurors any time soon.  It would be awfully hard to tweet from the jury box without being noticed.

UPDATE: I was wrong.

That’s right, this really is a new post. I didn’t plan to go for more than a month without posting — the longest time I’ve ever had between posts without first announcing a hiatus —  but events got the best of me. Which is OK.  Between clients and the blog, it’s not a close call.

I do plan to get a substantive post up this week and get back on a regular posting schedule soon.  Just wanted you all to know the blog has not been abandoned.

As a welcome back treat, allow me to share a couple of blawg items I found interestting.

First, I just ran across a blog called “EvilEsq,” which I discovered when its author started following me on Twitter.  Here’s an image from it, which, along with the title, is probably enough to tell you that you don’t want your name to show up there:

Second, the blog of Fresno criminal defense lawyer Rick Horowitz has one of the best subtitles ever, at least if you’re an appellate guy:  Probable Cause: The Legal Blog with the Really Low Standard of Review.

Back to work, everyone.

I don’t know if they coined the phrase — kudos to whoever did — but “the ‘poof principle” is the phrase the guys at California Attorney Fees use to sum up one aspect of Sanai v. Saltz, case nos. B198217 & B202787 (2d Dist. Jan. 26, 2009).  What better phrase to apply to a case where the defendants sees a million dollar attorney fee award evaporate because the underlying judgment is reversed?

From my lips to the Court of Appeal’s ears . . . or maybe from my keyboard to the Court of Appeal’s monitors . . . barely a week after I lamented how old most of the published case law is regarding supersedeas and other stays on appeal, along comes Veyna v. Orange County Nursery, Inc., case no. G041305 (4th Dist. Jan. 15, 2009), a published decision denying a petition for writ of supersedeas.  Published opinions on this topic rarely come along, so we might as well grab all the gusto we can from it.  First, a synopsis of the facts, then a couple of lessons to take away from the case.

The underlying proceeding was filed by the minority shareholders of a corporation to force its dissolution.  The parties stipulated to follow the buy-out procedure of Corporations Code section 2000, under which the corporation would purchase the shares of the minority shareholders.  Since the parties could not agree on share value (imagine that!), the majority shareholders were required to post a bond pending a final order.

After independent appraisers submitted a unanimous valuation report to the court, the minority shareholders moved to confirm the appraisal.  The majority shareholders fought the motion, contending that the business had been overvalued.  The trial court adopted the appraisers’ valuation of the company and entered an alternative decree fixing a share price and setting a date by which the purchasing shareholders had to tender cash payment to the minority shareholders for their shares, and which provided that failure to timely tender cash payment would result in the entry of judgment of involuntary dissolution.

Ten days before payment was due (and without making any payment), the corporation filed its notice of appeal, and three days after that they filed their petition for writ of supersedeas in the court of appeal without first seeking a stay in the trial court.

The court denies the petition, with some lessons along the way, which I present in no particular order.

The issue that I think caused the court of appeal to publish the decision is the first one it tackles: whether the alternative order was automatically stayed upon the filing of the appeal from it.  The court holds that the order was not automatically stayed because the proceeding wasn’t really an “action” for purposes of the rules governing stays and undertakings on appeal in a civil “action.”  (Code Civ. Proc. secs. 22-23.)  In fact, the parties agreed that the involuntary dissolution suit was a “special proceeding” under Code of Civil Procedure section 23.  Since the stay provisions (Code of Civil Procedure sections 916 et seq.) of Part 2 of the Code apply only in civil actions, the decree was not automatically stayed.

(This is probably a good time to warn prospective appellants in civil actions against taking comfort in the “automatic stay” of Code of Civil Procedure section 916, under which “the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order.”  There’s a huge “but”: the automatic stay of section 916 is subject to so many exceptions that they  swallow the rule, and it is the unusual case that is actually stayed automatically.)

Special proceedings are subject to the stay provisions of Part 2 only if the statute creating the special proceeding expressly incorporates them.  The majority shareholders directed the court’s attention to Corporations Code section 2000, subdivision (d), under which, to prevent winding up and dissolution, the purchaing parties “shall pay to the moving parties the value of their shares ascertained and decreed within the time specified pursuant to this section, or, in the case of appeal, as fixed on appeal.“  (Emphasis added.)  Unfortunately, they did not make clear what they thought the significance of the provision was.

The court rejects two possible assertions based on the cited language.  First, holding firm to the rule that statutory incorporation of Part 2 must be express, it rejects the possibility that the cited language was intended to incorporate the stay provisions of Part 2.  Second, it rejects the possibility that the cited language itself imposed a stay.  Because there is a stay on appeal from special proceedings only when the implementing statute expressly incorporates Part 2, the  language cannot be read to implement a stay independent of Part 2.

I think that’s probably it for the new stuff.

One thing really jumped out at me.  Did you note my reference to “possible assertions”?  The court began its analysis: “It is unclear how subdivision (d) purports to address the narrow question of whether an automatic stay comes into effect upon the perfecting of an appeal.  If the argument is that . . . “  If the argument is?  The court was confused what the appellant’s argument was even after hearing oral argument!

Reminder of an old rule: self-executing judgments are not automatically stayed (and supersedeas is usually inappropriate, too).  Since failure to tender payment for the minority’s shares would result in a judgment of dissolution without further action by the court, it is self-executing, and thus not stayed.

Another reminder of an old rule: apply for a stay in the trial court before petitioning for supersedeas.  Moving on to its discretionary power to issue supersedeas, the court cites appellant’s failure to seek a stay from the trial court as grounds for denying the petition, which ought to serve as an important reminder to appellants that the court of appeal takes this prerequisite seriously:

An application for a stay of a judgment should, wherever possible, be made first in the superior court. [Citation.] The reason is self-evident but it bears repeating.  “A trial court’s familiarity with the evolving circumstances of a case normally constitutes it the appropriate forum to weigh the relative hardships on the parties, including the likelihood that substantial questions will be raised on appeal, and its refusal to grant or to continue an injunction during appeal is entitled to great weight.” [Citation.]

Appellant said it did not apply for a stay in the trial court because it did not believe it had any remedy available to it there (remember that Code of Civil Procedure section 918 would not apply).  However, Since the trial court’s preliminary decree had specifically allowed that the payment date could be postponed “for good cause,” the court of appeal holds that relief was at least theoretically available in the trial court.  Thus, the court denies the petition “on the narrow ground that the [petitioners] should have sought relief in the superior court first.”

Make sure you provide an adequate record when you are seeking supersedeas.  Petitions for supersedeas are often filed prior to preparation of the record on appeal, so the petitioner is responsible for submitting documents to the court of appeal sufficient to decide the petition.  (Cal. Rules of Court, rule 8.112(a)(4)(B)(iv).)  Though appellants argued that it would raise a substantial question on appeal regarding the propriety of the appraisal procedure, it did not even submit its own papers opposing the motion to confirm the valuation.  Their failure to do so could only emphasize that the superior court, because of its familiarity with the case, was better suited to first entertain a request for a stay.

By the way, the case is very interesting reading on the subject of involuntary dissolution.

Remember all the blog coverage (and not just here) about school officials’ strip search of a 13-year-old Arizona student in a “zero-tolerance” motivated quest for that dreaded scourge, Ibuprofen?  I covered the original decision upholding the search here, noted the grant of rehearing here, and the en banc reversal here.  Here’s the en banc opinion: Redding v. Safford USD #1, case no. 05-15759 (9th Cir. (en banc) July 11, 2008).

SCOTUS granted cert Friday afternoon, so there is sure to be another burst of blog coverage about the case.  If you want to get up to speed while saving yourself some clicks, go straight to this synopsis by newly minted California lawyer “Gabriel Malor” (a pseudonym, for reasons he explains here).  (Don’t be misled by the “moronlogger” label in his sidebar.  He [assuming "Gabriel" is really a "he"] frequently provides very good, concise coverage of major legal developments at his blog, Gabriel Malor.)

You bet it can, and your boss isn’t the only one who can create trouble for you.  To see what other kinds of trouble you can get into, and how to avoid it, check out this oldie but goodie (but just recently posted to SSRN), Ethical Legal Writing, from UT law professor Wayne Schiess of Legalwriting.net and its blog.  The abstract: “This article describes real cases in which lawyers got into trouble for poor legal writing: court sanctions, fines, bar discipline, civil liability, and public humiliation. It offers advice for avoid [sic] those fates.”

But of course!  Not of the leather, whips and chains variety, though.

“Dominance and submission” at appellate oral argument is one of the areas taken up by UNLV law professor Michael Higdon in his forthcoming Kansas Law Review article, available now at SSRN: Oral Argument and Impression Management: Harnessing the Power of Nonverbal Persuasion for a Judicial Audience. From the abstract:

As you will see in the article, nonverbal communication goes well beyond simple hand gestures, but also encompasses how a person speaks, how a person dresses, a person’s facial expressivity, and even such things as a person’s posture and head position. Furthermore, social science research reveals that both these and other nonverbal cues can greatly impact the perceived credibility and persuasiveness of a speaker. Not only that, but in many instances, listeners tend to place even more reliance on what a speaker is saying nonverbally than the actual substance of the speaker’s presentation. Given that attorneys should seek to maximize their persuasive potential during oral argument, knowledge of this research and these various principles is essential. Section III of my article explores this research.

Of course, what makes nonverbal persuasion somewhat different for oral advocates comes from the fact that the attorney is directing his argument not to a jury, but to a judge. As my article details, one of the ways a speaker nonverbally increases his ability to persuade is by employing nonverbal cues that enhance the speaker’s perceived dominance. When appearing before a judge, however, the attorney must keep in mind that 1) it is the judge who is most dominant and 2) the judge expects nonverbal cues from the attorney that the attorney understands this hierarchy. Again using social science research, Section IV of my article explores this balancing act between dominance and submission and offers concrete advice on how oral advocates can navigate that somewhat thorny issue.

If you ever feel like testing out this theory of dominance and submission, just interrupt one of the judges while he or she is speaking.  You’ll usually learn who’s dominant pretty damn fast.

That’s from Mehr v. Superior Court (1983) 139 Cal.App.3d 1044, 1049 fn. 3, regarding the doctrine of stare decisis.  It’s a handy quote to keep in your arsenal for those occasions when you have to cite very old cases.  I can remember legal research and writing instructors pounding into our heads that we should always use newer cases, where available.  Thus, while I’ve never seen anyone try to discount a case based on its age alone, there’s that uneasy feeling any time I find it necessary to cite an old case that the adverse party will try to do just that.

A smart lawyer, of course, would not rely on age alone.  The lawyer would point to some changed circumstance since the time the case was decided, such as changes in statutes or case law that the older decision relied on.  Nonetheless, I feel a little better having Mehr at my disposal.

Here’s the full paragraph from the case:

Although the California Supreme Court is free to overrule its own prior decisions, the doctrine of stare decisis compels lower court tribunals to follow the Supreme Court whatever reason the intermediate tribunals might have for not wishing to do so. [Citations.]  There is no exception for Supreme Court cases of ancient vintage.

Speaking of cases of ancient vintage, they seem to crop up a lot in the area of stays and supersedeas pending appeal.  This strikes me as an odd place for old cases to dominate, in light of the intervening overhaul of the relevant statutes.

If anyone has an explanation, theory, or even a SWAG** as to why old cases dominate in this area — or who, perhaps, wishes to point out that my factual premise is wrong — please leave a comment on this post. (**SWAG = Scientific Wild-Ass Guess – a term I picked up while studying engineering.)

Certainly not Division Three of the Fourth District Court of Appeal.  In The Termo Co. v. Luther, case no. G038435 (Dec. 17, 2008), the court holds that the rule of court allowing the 20-day window for “any other party to appeal from the same judgment or order,” triggered by the clerk’s mailing of the notice of the filing of an appeal, means just what it says, notwithstanding its “Cross-appeal” heading.

Termo and Angus Development Corporation were co-petitioners in the administrative writ proceedings.  The trial court denied the writ.  Termo filed its notice of appeal from the judgment on the 59th day following service of notice of entry of judgment — just one day prior to the jurisdictional deadline of 60 days following mailing of notice of entry of judgment.  (See rule 8.104(a)(2), Cal. Rules of Court)  Angus filed its notice of appeal from the same judgment two days later — 61 days following mailing of notice of entry of judgment.  Respondent Hunt Petroleum (AEC), Inc., joined by respondent Director of Conservation Bridgett Luther, moved to dismiss Angus’s appeal on the basis that it was untimely filed.

The applicable rule** states: “If an appellant timely appeals from a judgment or appealable order, the time for any other party to appeal from the same judgment or order is extended until 20 days after the superior court clerk mails notification of the first appeal.” (** The court decided the case on the basis of former rule 8.104(e)(1) as in effect at the time the appeals were taken, but the wording of current rule 8.108(f)(1) is identical, as is the “Cross-appeal” heading noted by the court, and thus the result should be the same under the current rule.)

Respondents contended the rule applies only to cross-appeals and to parties adverse to the first appellant, but simple statutory definitions allowed the court to make short shrift of those arguments:

Hunt contends that California Rules of Court, rule 8.108(e)(1) is inapplicable, for two reasons. First, Hunt says the rule applies only to cross-appeals and Angus did not file a cross-appeal. Second, Hunt asserts that the rule applies only when the party seeking to utilize the 20-day extension period is adverse to the first party to file an appeal. We disagree.

Although the topic heading to California Rules of Court, rule 8.108(e) reads “Cross-appeal,” as Angus points out, “[b]y definition, a cross-appeal is any appeal filed after the first appeal [citation], and [the] rule . . . does not differentiate between cross-appeals which are protective and those which are independent.” (Life v. County of Los Angeles (1990) 218 Cal.App.3d 1287, 1297- 1298, fn. omitted.) Moreover, “[t]he usual rules of statutory construction are applicable to the interpretation of the California Rules of Court. [Citation.]” (Id. at p. 1296.) “‘“When statutory language is . . . clear and unambiguous there is no need for construction, and courts should not indulge in it.” [Citation.]’ [Citation.] Under the guise of construction, the court will not rewrite a law and will not give the words an effect different from the plain and direct import of the terms used. [Citation.]” (Ibid.) Here, the text of rule 8.108(e)(1) contains no limitation of the type asserted by Hunt. It requires neither that an appeal be denominated a “cross-appeal” nor that the second party to file an appeal be adverse to the first party to do so, in order for the 20-day extension period to apply.

In this case, Termo filed a timely appeal from a judgment and an order and, two days thereafter, Angus filed an appeal from the same judgment and order. The appeal of Angus is timely filed under California Rules of Court, rule 8.108(e)(1). The motion to dismiss is denied.

Appellate practitioners already know not to turn away a client just because more than 60 days have elapsed since the notice of entry of judgment was mailed and the client has not yet appealed, because post-trial motions can extend the time to appeal.  (See rule 8.208(b)-(e).)  Make sure you don’t overlook this interpretation of rule 8.108(f)(1), either.

My thanks to Long Beach business litigator Charles Hokanson, who alerted me to this important case, knowing that I was on hiatus when it was published.  Nice to know at least one of you guys is looking out for me!

Fellow Jones Day alumnus David Mills publishes a daily legal cartoon at his Courtoons blog, recently added to the blogroll under “Legal Humor Blogs.”

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

There is another aspect to the media coverage that I did not give much thought to, and that is the way that the media painted the materials as sexually graphic and/or obscene.  Considering the mischievousness that is usually attributed to Judge Kozinski, I figured that would be water off a duck’s back.  And while it might have been just that for Judge Kozinski, a long-time critic of the Los Angeles Times isn’t taking it so lightly.

Blogger Patterico blasts the Times’s coverage of the Kozinski incident in his round-up of 2008 L.A. Times reporting at Patterico’s Pontifications.  Among his findings is that the source for the article is a man with a long-running feud with Judge Kozisinski.  And to give you an idea of his post, here’s what Patterico describes as one distortion:

The paper also referred to “themes of defecation and urination” — but vastly understated the humorous context of any such themes. Rather than graphic depictions of bodily functions, material with themes of urination turned out to be stuff like this:

Patterico appears to come at the issue as much from the Right as the Times does from the Left, and I didn’t follow all of his links, so I don’t know if his own critique is fair. But anyone who wants to give Judge K a fair shake should probably look at Patterico’s post, which includes many links to prior coverage.  (That link leads to a very long post — you can find the part about Judge Kozinski by searching for his name or scrolling down until you see his picture.)

I’ve had a hard time getting back up to speed since returning from being out sick.  Fighting a lingering cold, catching up on old cases and jumping into new ones . . . being so busy and with Christmas approaching, this seems like a good time to take a blogging break.  I do not plan to post again until at least January 2, 2009.

I hope you all have a wonderful Christmas, a fun New Year’s celebration, and a fantastic 2009.

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

By the way, the announcement also includes the news that the court’s L.A. office will also start closing for lunch between noon and 1 p.m. starting Monday, December 15, 2008.

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

No, I haven’t “lost it” during my absence. The title of this post is a parody of a bad issue statement — something we all see way too often.

As for an answer to the question itself, this looks like a pretty darn good place to start.

Just a short post to wish everyone a happy Thanksgiving Day.

My work schedule remains light as I continue to struggle through whatever crud I have.  Honestly, I thought I’d be over this by now, but the duration of this energy-sapping malady is going on four weeks!  Thanksgiving Day reminds me, however, that I should grateful my illness amounts to nothing more than a severe inconvenience. 

I haven’t been looking at the courts’ output for the last month or so, so if there’s anything of appellate interest that you think I should write about, email me with the case information and I’ll try to get to it. I am hopeful that I will resume posting next week.

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

 I’ve been able to work only on those projects demanding my immediate attention.  Since my blog can’t be dismissed for failure to post, while my cases can be dismissed for failure to file, my limited hours of coherence each day have been devoted to my cases.

I finally feel like I’m on the mend, and hopefully, I’ll be back up to speed next week.

And don’t let this stop you from sending me new cases!

Here is a well-stated look into the minds of appellate judges, from a 2-year old column by Howard Bashman:

One essential trait that an appellate lawyer must possess is the ability to think about legal issues from the perspective of judges who serve on appellate courts. Appellate courts are not only responsible for trying to reach the correct result in the cases on appeal, but their rulings often create precedents that will govern other cases that don’t even exist yet. Thus, an appellate lawyer must be cognizant not only of how existing precedent will affect an appellate court’s view of a newly filed appeal, but also about how the precedent created in the course of deciding the new case will affect the future direction of the law.  

Not every appeal has such an issue.  If all appeals did, you wouldn’t see so few decisions published.  But this is a question that must be part of every case evaluation and, if such an issue is present, the question of “what if” must be anticipated and answered before it is asked.

Our local appellate court in Ventura (Second District, Division Six) can be a good place to hang out if you’re looking for a chuckle. I don’t think I’ve ever left a session there without having at least once laughed, or at least smiled — just not in my own case. No, I don’t laugh at anybody . . . I laugh with them.

At a recent session, a somewhat mischievous question from the presiding justice brought some grins to those waiting and provided food for thought.

Presiding Justice Arthur Gilbert is well known for his wit, and recently it even came out during the criminal case calendar. Usually, all four justices in the division are on the bench, and Justice Gilbert will announce with each case called which of the four justices are on the three-justice panel for that case. One appellant’s counsel took the podium and asked if Justice Gilbert could repeat which of the three justices were on the panel. After repeating the names, Justice Gilbert asked the attorney how she was going to do anything different now that she knew. It seemed like a mischievous question.

Wanting to know who’s on your panel, though, isn’t all that bizarre a request, especially if you’ve become familiar (or at least think you have) with the idiosyncrasies of each justice. Everyone’s heard experienced (and sometimes not-so-experienced) attorneys offer such sage wisdom as “If you draw Justice Razzamatazz, remember that he’s still bitter that the Supreme Court reversed him in Folder v. Screen, so he’s susceptible to arguments that situations shouldn’t be be governed by Folder.” True or not, attorneys act on such “revelations.” (One of the other Justices even quipped in response to Justice Gilbert’s question that if swing Justice Kennedy were on the panel, he’s the only justice the lawyer would have bothered to address.)

In fact, Justice Gilbert may have inadvertently been on to something. A while back, Tom Caso highlighted a study noting that certain substantive areas of the law draw more opinions from some judges more than others. In the words of the author “opinion specialization [is an] unmistakable part of every day judicial practice.” Tom took note of the practical implications:

If true, this suggests a more focused approach for the federal appellate lawyer. One of the difficulties for the appellate practitioner is not knowing the audience for the brief. If, however, opinions are assigned based on the specialities of the individual judges, the brief can be written with those individual judges in mind. This population of potential opinion writers is still larger than the ultimate panel that will hear the case. Nonetheless, by studying whether a particular subset of judges in your circuit write most of the opinions in your area of the law, you have the opportunity of focusing your presentation to address the concerns of those particular judges.

I think a lot of lawyers put too much stock in what they think they know of a judge’s biases. Most of the time a lawyer expresses a negative opinion about the judge, I find it is due to sour grapes over a loss.

However, a judge’s legal approach to things is certainly a fair factor to take into account. For instance, it’s probably not wise to rely on the aforementioned “Justice Razzamatazz’s” purported “bitterness,” but it strikes me as practical to look at his reasoning in the Folder case to see if you can craft an argument that is more likely to persuade him.

I imagine swear words are material to cases quite often, especially in defamation or employment cases (the latter being the first time I had to put one in a brief).  But I suspect they are rarely the focus that they will be in oral argument in this case before SCOTUS.  Apparently, “Justice Roberts is undecided on whether or not he should even allow the lawyers to use the words — and if so, whether to allow the argument’s audio to be played on C-SPAN.”