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.

Mandatory E-filing comes to the Third District Court of Appeal

Details here. The court has adopted a new Local Rule 5 covering e-filing procedures, which become effective September 14. It looks like documents need to be filed through the proprietary TrueFiling system. If you have an appeal pending in the third district now, make sure you register for the e-filing system promptly.

How hanging out with the wrong crowd might doom your appeal of your criminal conviction

Don’t be too alarmed at the title of this post. I’m not saying that the Court of Appeal will take the character of your known friends into account when deciding your appeal. I’m referring to convictions arising out allegations that members of a small group participated in a crime together. If there is no direct evidence that a particular defendant did any particular act, might being one of the group on the scene be enough to convict?

That all depends on what the defendant did with the group and what the group did. In In re Kevin F. (People v. Kevin F.), case no. A140445 (1st Dist., August 10, 2015), the court found the evidence supported a robbery conviction despite the absence of any direct evidence that the defendant himself assaulted the victim or took any of his property.

The defendant (referred to as “Minor” in the opinion) was with a group of three or four men that struck up a conversation with the victim on a commuter train and then, while walking with the victim afterwards, jumped him and stole several items after they entered a dark alley. The victim could identify which in the group had grabbed and held him while the others punched, but he could not identify who landed which punches and could not even say with certainty that all of them participated in the assault. He could say only that he believed all of them participated because he was “being punched in different directions.” The victim testified that he heard all of the men speaking but he could not tell who said what. The victim pursued the group as they ran away. When he caught up to them, the man who had held the victim took a threatening posture and told the victim, “I have a knife,” after which all of the group ran off.  After the assault, the police drove the victim around the neighborhood to see if he recognized anyone. He identified Minor as part of the group that robbed him, but the police found no weapons or any of the victim’s property on Minor.

Now, you might be saying to yourself, how could Minor’s conviction be upheld if nobody testified that he actually took part in the assault or that he took any of the victim’s property? The answer starts with the standard of review:

“Our review of [Minor’s] substantial evidence claim is governed by the same standard applicable to adult criminal cases. [Citation.] ‘In reviewing the sufficiency of the evidence, we must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citation.]’ [Citation.] ‘ “[O]ur role on appeal is a limited one.” [Citation.] Under the substantial evidence rule, we must presume in support of the judgment the existence of every fact that the trier of fact could reasonably have deduced from the evidence. [Citation.] Thus, if the circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant reversal of the judgment. [Citation.]’ [Citation.]” (In re V.V. (2011) 51 Cal.4th 1020, 1026.) Before the judgment of the trial court can be set aside for insufficiency of the evidence, “it must clearly appear that upon no hypothesis whatever is there sufficient substantial evidence to support it.” (People v. Redmond (1969) 71 Cal.2d 745, 755.) An appellate court may not reevaluate the credibility of witnesses. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

The “substantial evidence” threshold doesn’t seem real hard to meet, does it? As you might expect, appeals challenging the sufficiency of the evidence to support the conviction are notoriously hard to win.

Here, the court finds there is substantial evidence supporting a conviction, because there is evidence that: Minor was in the group that the victim met on the train; Minor introduced himself to the victim; Minor was still with the group when it got off the train, and waited outside a liquor store while the victim purchased cigarettes; Minor was with the group when it entered the alley with the victim; the victim was punched from several directions and thus “believed” everyone in the group punched him; no one in the group told the others to stop; Minor fled with the group after the robbery. Thus, “[The victim’s] testimony that Minor was with the group before, during and after the attack, along with [his] testimony about the attack itself (i.e., the young men punched him from different directions, and no one left or tried to stop the others), allows a reasonable inference that Minor participated in the attack.”

Alternatively, the court finds that the evidence is sufficient to establish that Minor aided and abetted  the robbery. Even if the finder of fact did not believe that Minor actually struck the victim or took any of his property, the court finds that it is reasonable to believe that Minor acted as a lookout to facilitate the robbery because he was with the group the entire time and did not state any objection to the assault and robbery.

Now, it might be that Minor did not assault the victim or take any of his property. He might have wanted no part of the assault and robbery, perhaps even been too scared to move or say anything during the crime, and so frightened of being associated with it (or of having to testify against his friends) that he ran off with the group rather than wait around for the police. But such alternate views do not come into play in substantial evidence review. The question is not whether a factfinder could go wither way based on the evidence. The question is whether substantial evidence supports the conviction, even if a reasonable factfinder could go either way.

In short, when any crime is committed in a group — at least, when committed in a small group of 3 to 6 people — it probably won’t matter that there is no direct evidence that a particular defendant did any specific act. So long as there is evidence that the defendant was part of the group and remained with the group before, during and after the crime, and did not object during the crime, the court is likely to find substantial evidence to support the conviction.

Are records on appeal from the Los Angeles Superior Court about to get better?

LASCThe headline is not a dig at anyone at the Los Angeles Superior Court (LASC). It refers to the impact of the statewide court budget crunch, which led many courts to stop providing court reporters as a matter of course. Faced with having to engage court reporters on their own, some litigants were foregoing the expense, at risk of having records inadequate to prosecute their appeals.

As a result, parties are appealing decisions without the reporter’s transcript that they would have been able to order under the old system. That can spell trouble for an appeal.

Last Friday, the LASC announced that it is hiring court reporters. Actually, I can’t tell from the announcement whether they are looking for multiple reporters or just trying to fill a single vacant position. Here’s hoping that it’s the former, and that this is a sign of things to come.

SB 470 codifies Reid v. Google, Inc., provides that objections to summary judgment evidence are preserved for appeal

whichthat2On Monday, according to this article at The Recorder, Governor Brown signed SB 470, amending Code of Civil Procedure section 437c, which governs procedure for motions for summary judgment and summary adjudication. For appellate practitioners, the significance of the bill lies in its codification of Reid v. Google, Inc. (2010) 50 Cal.4th 512. Reid held that objections to evidence submitted in support of a motion for summary judgment are preserved for appeal even if the trial court fails to rule on the objections. Prior to Reid, the courts were split on whether such objections were preserved. I’m unaware of any lingering controversy over the issue since Reid, but it is nonetheless satisfying to see its holding codified.

Specifically, the bill adds the following language to the section 437c:

(q) In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.

Trial judges served with dozens of pages of objections are now explicitly excused from ruling on those that they deem immaterial. I think some judges have probably been doing this already with orders such as “Plaintiff’s objections 1-10 granted; all others denied,” especially in light of the holding in Reid, but it is good to see the burden explicitly lifted. Consider this excerpt from the first report on the bill from the Senate Judiciary Committee:

The report cites published opinions that illustrate the large number of objections made in summary judgment papers and the huge volume of motion papers in overall. (See Reid v. Google, Inc. (2010) 50 Cal.4th 512, 532 [“We recognize that it has become common practice for litigants to flood the trial courts with inconsequential written evidentiary objection, without focusing on those that are critical [footnote omitted].”]) The report specifically cites, as an example, the case of Nazir v. United Airlines, Inc. (2009) wherein “the moving papers in support of a summary judgment totaled 1,056 pages, plaintiff’s opposition was nearly three times as long and included 47 objections to evidence, and the defendant’s reply included 764 objections to evidence.” [Citation.]

If you are wondering about the graphic accompanying this post, here’s the explanation. It is in honor of the drafters of SB 470, for eliminating from section 437c three incorrect uses of the word “which.” Misuse of “that” and “which” (most commonly, the improper use of “which” in place of “that”) is a pet peeve of mine — not just in section 437c, but everywhere, including all other California codes, briefs, news media, correspondence and judicial decisions. Yet, I am sure I am guilty of it on occasion. Every once in a while, whether “which” or “that” is the correct word can be a close call, but SB 470 corrected some obvious mistakes. You can see the redline of the amended section 437c here.

Changes to the blog

wordpress-logo-stacked-rgb-2Regular readers will note a different look to the blog, which I implemented over the weekend. I actually liked the old look better, but my WordPress upgrade “broke” the Headway theme I used to create it. So, I’ve used a stock WordPress theme, which I was able to customize only in color and font choice. I’ll get back to a custom look once I figure out the new version of Headway, but that may be several months from now.

Upgrading my WordPress installation has significant “back end” benefits for me (most notably, better backup capabilities and comment spam prevention), but also has several benefits for readers. The broken commenting function has been restored, so readers can once again comment on my posts. Take advantage of it! (Look for the “Leave a comment” link to the right of the post categories underneath the social media icons that are under each post.) The social media icons are also new, and make it very easy for readers to share posts via LinkedIn, Twitter, Facebook, etc. Printing functionality is also greatly improved. Clicking the printer icon in the icon row below a post will create a printer-friendly version of the post.

Readers who currently subscribe via RSS or email should watch for an announcement later this month about changes to the subscription service. I will try to make that as seamless as possible.

Apparently, the law library of the future is going to be one big Kindle

The Journal of the Legal Writing Institute has just published a short essay by Professor Ronald E. Wheeler of Suffolk University Law School, titled “Is This the Law Library or an Episode of the Jetsons?

The big takeaway: the library is going to resemble a super-advanced Kindle and its patrons will look like they are parts of the Borg Collective:

It will include technologies that we know about and technologies that are beyond our imaginations. Things like retinal and holographic displays are predicted to be in use in the next 5 to 10 years. Lawyers, law professors, and other law library patrons will be browsing touchable, holographic shelves to select volumes instead of walking through the stacks of physical libraries. Intelligent,robotic, personal assistants will be providing clerical and other kinds of support to library researchers. Law library patrons won’t carry around smartphones or tablets. Instead they will work on skin-embedded screens with fingernail displays, brain mapping, brain uploading, and DNA storage.

I encourage you to click the article title above to read Professor Wheeler’s view about what this technology means for how we must adapt our teaching, practicing, and researching of the law. Some, he notes, will have to overcome their thinking that electronic resources are less “scholarly” than print resources.

I will admit to some trepidation over technology, including the use of electronic briefs in appeals and the use of laptops in classrooms, but I’m no Luddite. I have concerns about how technology, or at least the misuse of technology, might undermine legal practice and scholarship. Still, I must admit that a general resistance to change and plain old nostalgia influence my thinking. Will today’s younger generation, seemingly so eager to embrace change, have the same nostalgia for their own “good old days” technology? Even the lawyers trained on the technology Professor Wheeler describes might lament the more advanced, “newfangled” technology that displaces the technology they used at the beginnings of their careers.

By the way, I stole that Kindle joke from an exceptionally funny Portlandia skit. Since it’s Friday afternoon, and we probably all deserve a laugh, here it is:


Have a nice weekend, everyone.

Is your notice of appeal likely to generate settlement leverage?

Every so often, I get a prospective appellant who is convinced that filing his notice of appeal will intimidate his adversary, prompting him to “come to the table” to hammer out a deal.

Good luck with that.

It’s not that cases cannot settle on appeal. It’s that most of the time, the mere act of appealing or filing a writ petition does not generate much leverage because the odds are inherently against the success of the appeal. Consider that the reversal rate on appeals generally hovers between 20% and 25%. Would you be intimidated by those odds?

That said, cases do settle on appeal, and some factors in a given case can do a great deal to encourage both sides to settle. (I’ll cover some of those factors in a future post.) Recognizing that some parties, and especially respondents, are less likely to settle on appeal, some courts with mediation programs have required the parties to make some showing that the case has a chance of settling before the court will assign a mediator. Thus, even if the parties are willing to talk, they may not be able to take advantage of the free mediation services offered through the court, and will instead have to engage a private mediator.

For a good overview of the differences between trial-level mediation and appellate mediation, check out this older blog post from last year from mediator David Karp.  David’s blog is one of the Member Blogs of the Month at the TEN Networks Blog, and I’ve gotten to know David a little through that group. His post is spot-on, and offers some insight he’s gained from volunteering his mediation services to the Court of Appeal.

California Supreme Court invites your comment on proposed changes to publication rules involving cases accepted for review

I expect that in this age of electronic research, most lawyers have experienced the frustration of finding the “perfect” case, only to learn it is unpublished and therefore could not be cited as precedent. (See rule 8.1115(a), Cal. Rules of Court.) Even in the “old days,” when research was limited to hard copy books, you could still find the perfect cases whisked out from under you, either because it was later disapproved or, more frustratingly, had been accepted for review by the Supreme Court, which has the effect of automatically de-publishing the case. (See rule 8.1105(e)(1), Cal. Rules of Court.)

That may change. Yesterday, the Supreme Court posted for comment some proposed changes to this scheme.The upshot is that there would be a 180-degree change in the rule, so that published cases accepted for review by the Supreme Court would remain published, with a notation that the case has been accepted for review.

Where things get interesting is in the related issue of the precedential effect of such cases. If cases on review remain published, should they have the same precedential value they had prior to being accepted for review? That’s one proposal (but it also has a provision that the Supreme Court could explicitly limit the precedential value of the decision. The second proposal is that such decisions would not be binding and could be cited only for persuasive value.

The proposal generated quite a bit of buzz on the Los Angeles County Bar Association Appellate Courts Section listerv yesterday. The “if it ain’t broke, don’t fix it” caucus seemed to win the day.

Of course, not everyone agrees that the current system “ain’t broke.” There is an organization dedicated to advocacy for publication of all Court of Appeal opinions. Several years ago, a law firm even sued the Supreme Court over its publication rules.

The issue of the precedential value of cases accepted for review is of concern beyond the appellate community, of course. Published decisions of the Court of Appeal, regardless of the district in which the decision was rendered, are binding on trial courts statewide. Where there are conflicting appellate court decisions, a trial court is free to choose which it will apply.

Since conflicts among the Court of Appeal often generate review by the Supreme Court, trial courts are forced under the current rules not to rely on the more recent decision and treat the earlier one as binding. Someone on the listserv pointed out yesterday that this is unfair, and I tend to agree. After all, where review is granted because of a conflict between two cases, the Supreme Court is likely to disapprove one or the other of them rather than reconcile them. In other words, since the fate of both cases lies in the balance, why should one have greater precedential value than the other?

If you wish to offer the Supreme Court your comments on the proposal, you must do so by September 25, 2015.

Update: Horrendously embarrassing typo in headline fixed!

Don’t treat one superior court judge as the reviewing court for another

Writs and appeals are sometimes not the only routes (or even the preferred routes) to relief from an adverse order or judgment. Motions for reconsideration, post-trial motions for new trial or to vacate the judgment, and motions to set aside a judgment all have the possibility of getting you a “reversal” of sorts without ever leaving the superior court.

I’ve written before about how a superior court judge may change a prior interim ruling on his own motion, even when the decision to do so is triggered by a faulty motion for reconsideration. The chief limitation on this practice is that, in most cases, one judge on a superior court cannot reverse the ruling of another judge on the same superior court, at least so long as the original judge is still available, i.e., still on that court. In Marriage of Oliverez, case no. H040955 (6th Dist., July 27, 2015), the court confirms that this rule applies even when the case has been transferred to a new judge for trial.

The original judge in Oliverez had denied husband’s motion pursuant to Code of Civil Procedure section 664.6 to enforce a settlement. The case was then transferred (for reasons the court was unable to discern from the record) to another judge, before whom it was tried. In his tentative ruling, the second judge stated his intent to reconsider the first judge’s ruling on the settlement enforcement motion and later gave formal notice of its intent and afforded the parties an opportunity to brief the issue. The second judge then issued a statement of decision and final judgment, in which he vacated the prior order denying the motion and entered a judgment of dissolution that incorporated the terms of the settlement. Wife appealed.

The Court of Appeal covers the “narrow” exceptions to the general rule that one trial court judge may not reconsider and overrule an interim ruling of another trial judge:

“[W]here the judge who made the initial ruling is unavailable to reconsider the motion, a different judge may entertain the reconsideration motion.” Another exception is when the facts have changed or when the judge has considered further evidence and law. Additionally, a second judge may reverse a prior ruling of another judge if the record shows that it was based on inadvertence, mistake, or fraud. Mere disagreement, as here, with the prior trial judge’s ruling, however, is not enough to overturn that ruling.
(Citations omitted.)

Since the first trial judge in Oliveras was still on the bench, and it was apparent from the second judge’s ruling that he merely disagreed with the first judge on the original evidence and law, the judgment vacating the prior ruling did not fall within the exceptions.

Perhaps the husband saw the writing on the wall. He did not file a respondent’s brief in the Court of Appeal.

So, do you want your superior court judge to reconsider an earlier ruling based on the same facts and law? Knock yourself out with the same judge, but don’t try to turn another superior court judge into a one-judge appellate court.

The appellate angle in Marriage of Davis

Family law attorneys are buzzing this week about Monday’s unanimous Supreme Court decision in Marriage of Davis, case no. S215050 (July 20, 2015). The Metropolitan News-Enterprise summed up the holding this way: “A married person cannot be considered separated, and thus permitted to keep his or her earnings as separate property, while continuing to live with his or her spouse[.]” The court itself referred to its ruling as a “bright-line” rule.

Not so fast, folks. My friend Claudia Ribet has a column in today’s Daily Journal (link requires subscription) discussing the subtleties in the decision and concurring opinion, concluding that it may not even reduce litigation over the “separate and apart” issue very much.

I’ll leave that debate to the family law attorneys for now.

I, of course, am interested in what this decision teaches us about approaching appeals. The obvious lesson is this: an appellant needs to carefully consider the standard of review and, if at all possible, frame an issue on appeal subject to de novo review, in which the appellate court reviews the ruling without any deference to the trial court’s ruling or rationale, as if the case was being decided anew.

As the Supreme Court notes at the outset of its analysis, the date of separation “is normally a factual issue to be reviewed for substantial evidence.” However, the appellant raises an issue of statutory interpretation of Family Code section 771, subdivision(a), thus invoking the more favorable de novo standard of review, and prevails.

In this case, it probably was not too hard for appellant to realize how to latch onto an issue subject to de novo review, since the trial court’s decision went against a court of appeal opinion establishing separate residences a “threshold requirement” of living “separate and apart” for purposes of the statute. Voilà! De novo review of statutory interpretation.

It’s not always that easy. For more difficult cases, see this post and this one.

Congrats and thank you to the new TEN Networks Blog (and welcome, TEN members!)

The TEN Networks, Inc. launched its blog last week, and the editors graciously designated The California Blog of Appeal as one of its Member Blogs of the Month, along with with Elderupdates.com, the blog of Encino elder law attorney Brian Shepphard.

The TEN Networks is the umbrella organization for two business networking groups: The Esquire Network, a fantastic attorney group with a unique meeting structure, of which I am an enthusiastic member; and The Executive Network, which is open to other professionals. I encourage you to check them out.

Finally, how fortuitous (divine?) that TEN’s new blog would honor this one around the time I made my shameless plea for nominations for 2015 Legal Blog of the Year!

Federal Judge: Appellate Judges Know Nothing About Tech

Joel Spector ⓒ2013

Those words after the colon come straight from the headline at Bloomberg News, where you can treat yourself to a 40-minute interview with federal district judge Shira A. Scheindlin of the United States District Court for the Southern District of New York, conducted at the 2015 Big Law Business Summit.

The Bloomberg headline may exaggerate Judge Sheindlin’s position somewhat. Her comments on technology are directed mostly to the technology involved in discovery of electronically stored information (“ESI”).

Given that she is referring to ESI discovery, her view on appellate judges’ knowledge is neither shocking nor insulting. As in California sate courts, most discovery rulings are not immediately appealable. They may be reviewed on appeal from a final judgment (which I suspect is a somewhat are occurrence) or by mandamus, which is discretionary. Thus, federal appellate courts are unlikely to see many discovery cases at all, let alone cases involving disputes over ESI discovery. If federal appellate judges are unfamiliar with the technology, it is probably because it rarely comes into play before them.

Shameless request for nominations

Expert witness service The Expert Institute is taking nominations for entries in its 2015 Best Legal Blog Contest.

Do I need to say anything more?

OK, here comes the shameless part.

Whether you are a years-long fanatical subscriber to this blog whose first action every morning upon waking is to grab your iPhone off your nightstand and check your RSS reader to see if there are any updates to this blog, or someone who just came across this blog yesterday, give some thought to nominating this blog. If you do, you should nominate it in the “niche” category. (If Best Blog By A Guy Who Does The Best He Can With The Time He Has Blogging About Things Like Appellate Procedure, Legal Research, Legal Writing, Technology in the Law, Significant Substantive Developments In The Law, And Court News Off-And-On Since 2007 is not a niche, I don’t know what is.)

To reach the contest nomination page, click the image above or the second link in this post. Or click here, here, here, or here. Or, if you like, here.

I’ll even let you click there to nominate other blogs. Just this once.

Update (8/19/15): Time is running out. I got an email this morning advising that nominations must be in no later than than the “end of the day” on Friday, August 21, 2015.

Overcoming the abuse of discretion standard on appeal of an attorney fee award: what did the trial court actually do?

Respondents use the “abuse of discretion” standard for all it’s worth when defending against appeals, and they should. Often, it’s one heck of a shield. But there are limits to relying on the this standard of review, and the Court of Appeal will reverse in appropriate circumstances.

One such example is last week’s decision in McKenzie v. Ford Motor Co., case no. G049722 (4th Dist., July 10, 2015). Plaintiff rejected one settlement offer in this “lemon law” case, but settled a few months later. The settlement was entered as a judgment. It required Ford to buy back the “lemon” automobile and allowed the plaintiff the option of accepting payment of $15,000 for attorney fees or instead roll the dice with a fee motion. Plaintiff moved for nearly $48,000 in attorney fees, and appealed when the trial court awarded only $28,350.

The trial court explained its award by noting that it deemed all of the fees incurred following the plaintiff’s rejection of an initial settlement offer to be unreasonable, because the only difference in the initial offer and the settlement entered into was the provision allowing him to file an attorney fee motion. To the trial court, this indicated that the 42 hours billed to the case following the plaintiff’s rejection of the earlier settlement offer “amounted to ‘plaintiffs’ counsel exaggerating the amount of their fees to increase their prized fees.'” (Gee, attorneys concerned about getting paid. Who’d of thunk it?)

The Court of Appeal reverses, finding fault with the trial court’s reason for limiting the fee award. Its analysis is helpful to anyone facing the daunting “abuse of discretion” standard of review.

First, the Court of Appeal notes that the trial court erred as a matter of law in characterizing the differences between the initial settlement offer and the eventual settlement, because (1) the trial court was wrong about the first offer not including an option for plaintiff to accept $15,000 or make a fee motion; the settlement and prior offer were actually identical in this regard; and (2) there were many other material differences not noted by the trial court. “The trial court’s erroneous comparison of Ford’s initial compromise offer with the offer McKenzie later accepted fatally undermines its conclusion that the entire amount of hours billed by McKenzie’s counsel in the wake of that initial offer was unjustified.”

Second, the Court of Appeal demonstrates the limits of its duty to indulge all reasonable inferences in favor of the ruling:

Ford counters by first emphasizing our obligation to indulge all inferences in favor of the trial court’s ruling, and pointing out the trial court is not required to explain in detail the basis of its fee decision. Ford urges us to construe the court’s reduction of McKenzie’s fee as reflecting an assessment of the usual lodestar factors considered in determining fee amounts — e.g., the complexity of the case, the expertise of McKenzie’s counsel, and the early stage at which the case was settled — and a resulting determination that $28,350.08 was simply an overall “reasonable” fee for the work performed.

However, while we could certainly do that in the absence of any specific analysis provided by the trial court, we cannot ignore the court’s reasoning when detailed in the order. In this case, the court was quite explicit in explaining the basis for reducing McKenzie’s fees — rather than imposing a general reduction on the fees requested from the outset, on the basis the rates charged by McKenzie’s counsel were too high or the overall time claimed was unreasonable given the complexity of the case, the court characterized its reduction as “based on redaction of fees for duplicated and unnecessary services and billing performed after defendant’s service of its CCP Section 998 offer.” The court awarded McKenzie 100 percent of the fees he requested for the period before Ford’s initial offer, but found the entirety of “the subsequent billing was unreasonable” and excised that specific portion of the fees from McKenzie’s award. When the court states its reasons explicitly, we cannot infer its exercise of discretion rested on a wholly different basis.

(Italics did not appear in the trial court analysis and were added by the Court of Appeal.)

In short, what the court actually did is what matters for the abuse of discretion standard. As the court points out, it may be impossible to know what the court actually did. Had the record in McKenzie not made clear the basis of the court’s exercise of discretion, plaintiff probably would have been sunk on appeal, unless there was no rational basis for the amount of the award.

Having the trial court’s analysis in the record made all the difference in this case. Keep that in mind when your next fee motion approaches.

The deadline for filing the memorandum and affidavits in support of a motion for new trial is not jurisdictional

Some parties try to make jurisdictional issues out of non-jurisdictional ones. You can hardly blame them, given the fatal nature of jurisdictional defects.

One recent attempt — but ultimately an unsuccessful one — was in Kabran v. Sharp Memorial Hospital (2015) 236 Cal.App.4th 1294, in which the appellant (Sharp) claimed that the trial court lacked jurisdiction to grant a new trial. That’s a somewhat surprising contention, seeing as how the respondent timely filed her notice of intention to move for a new trial (Code Civ. Proc., § 659, subd. (a)) and the court granted the motion within the 60-day jurisdictional deadline (Code Civ. Proc., § 660) on a ground stated in that notice.

With those two conditions satisfied, where did the appellant look for a lack of jurisdiction? At the respondent’s interim filing of her supporting memorandum and affidavits, that’s where. Unlike most motions, the initial filing in a motion for new trial is not a notice of motion and a supporting memorandum (plus affidavits, if any). Instead, all the moving party has to file is a notice of intention to move for a new trial, specifying the statutory grounds on which the motion will be made and whether the motion will be made upon affidavits, or the minutes of the court, or both. (Code Civ. Proc., § 659, subd. (a).) The supporting memorandum and affidavits are not due until later, and it was the untimeliness of that filing that the appellant attacked in Kabran.

Unfortunately, appellant Sharp came armed mostly with authorities holding that an untimely filing of the notice of intention precludes jurisdiction to grant a new trial. Sharp claimed that two of the cases supported applying the same rule to the deadline for filing the motion, memorandum, and affidavits, but the Court of Appeal rejects that characterization of the cases. It finds that the first “did not involve any issue concerning the filing of the supporting motion and affidavits.” (Emphasis added.) It concludes that the other case, Erikson v. Weiner (1996) 48 Cal.App.4th 1663, is on point but but runs counter to a long string of cases by which “[i]t has long been held that the time limits for filing affidavits and counteraffidavits for new trial motions, though ‘strict’ [citations], are not jurisdictional.” (Emphasis in original.) The court offers a more detailed criticism of Erikson, but I’ll leave that to your reading of Kabran.

Egregious attorney misconduct at trial leads to reversal on appeal

When I was a young lawyer, a mentor told me to practice as if the rules will always be strictly enforced against me and my client, yet never enforced against the other side. I always took that as a bit of rhetorical flourish meant to emphasize careful compliance with the rules and to be ready for anything from the other side, but my mentor’s admonition appears to have been manifest in the trial leading up to Martinez v. State of California Dept. of Transportation, case no. G048375 (4th Dist., June 12, 2015, certified for publication July 7, 2015). The misconduct paid off in the short term by getting a defense verdict, and it even survived a mid-trial motion for mistrial and a new trial motion, but it was a short-lived victory, as the Court of Appeal reverses.

Here’s how the Court of Appeal summed it up:

Generally, what happened is this: Defendant’s attorney Karen Bilotti would ask a question in clear violation of the trial court’s in limine orders [i.e., orders precluding certain evidence at trial]. The question would usually have the effect of gratuitously besmirching the character of plaintiff Donn Martinez. An objection from Martinez’s counsel would follow. The trial court would sustain the objection. Bilotti would then ask the same question again. The trial court would sustain the objection again. And the same thing would happen again. And again. And again. And again.
***
While Judge Di Cesare showed the patience of Job – usually a virtue in a judge – that patience here had the effect of favoring one side over the other. He allowed Bilotti to emphasize irrelevant and inflammatory points concerning the plaintiff’s character so often that he effectively gave CalTrans an unfair advantage. Imagine a football game in which the referee continually flagged one team for rule violations, but never actually imposed any yardage penalties on it. That happened here and requires reversal.

The court even gives a tally of the misconduct: eight improper statements during opening argument, ten references during cross reference of plaintiff to the off-limits subject of his prior termination from a school district, another 13 forbidden references to the termination — 12 of them after sustained objections! — during cross-examination of plaintiff’s wife, and five improper statements during closing arguments. Counsel also sprinkled Nazi references liberally because the plaintiff’s motorcycle bore a logo for Set Free ministries — a religious organization that ordained plaintiff after a year of bible study — that included a Nazi-style helmet.

The court also summarizes the misconduct by type and, noting that appellant claimed there was even more misconduct, writes: “But we see no reason to go further. Suffice it to say we found enough to establish attorney misconduct at least five pages ago.”

Of course, the misconduct alone is not enough for reversal. Before the court can reverse, it must find that the misconduct was prejudicial. That’s not hard for the court to do in this case. See the case for more dateline the nature of the misconduct and why it was prejudicial, and the trial court abused its discretion in denying a motion for new trial.

The court’s characterization of the trial judge as “patient” has to be the understatement of the year. The trial judge denied a mid-trial motion for mistrial, and even after the attorney continued in her misconduct after that, the trial judge refused to grant a new trial motion after the defense verdict.

The reversal on appeal is not the only adverse consequence of the misconduct. The Court of Appeal also orders the clerk to send a copy of the opinion to the State Bar, “notifying it the reversal of the judgment is based solely on attorney misconduct.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

UPDATE: For those interested in reading more about the disentitlement doctrine, see the article referenced at Southern California Appellate News.

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

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

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

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

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

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

Here is a simple demonstration of the principle:

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

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

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

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

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

Your humble appellate blogger working on his next article

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

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

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

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

Does classroom laptop use inhibit law school learning?

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

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

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

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

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

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

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

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

***

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

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

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

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

_______________________________

*Not everyone is enamored of the Socratic Method.

DigitalDemocracy.org: an experiment in legislative transparency

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

One-week old DigitalDemocracy.org does that:

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

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

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

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

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

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

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

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

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

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

Consider this summary of a Norwegian study at Science Nordic:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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