I’ve added RSS feeds to the right sidebar, below the category listing, with the self-explanatory headings of “Blogosphere Coverage of California Appeals” and “Blogosphere Coverage of the Ninth Circuit.” These feeds are of search results from Google Blog Search for keywords designed to return results in line with these topics. Two things I am still experimenting with. First, I haven’t figured out a way to exclude links to my own posts, so some of the titles will look familiar. Second, I may be tweaking the search terms in the next few days if I don’t see the content changing much from day to day. Give it some time if the…
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Should SCOTUS Justices Disclose Reasons for Recusals?
This Washington Post editorial argues that they should. It first notes the justification for not disclosing reasons for recusals: Justices have traditionally declined to elaborate on why they’ve stepped aside. One reason: a legitimate concern that revealing the cause for a recusal could empower future litigants to manufacture conflicts — such as hiring the spouse or child of a justice as a lawyer on the case — to force the removal of a justice who appears philosophically hostile to their arguments. It then argues that the most recent recusals of Justice Roberts and Justice Breyer from a pending securities suit were likely due to their ownership of stock in the…
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Legal Research and the Bar Exam
Should legal research skills be tested on the bar exam? Legal Writing Prof Blog links to an article making that case. Technorati Tags: bar exam
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Legal Malpractice Tolling Decided by Supremes
It’s always nice to see a split of authority resolved. Code of Civil Procedure section 340.6 provides that the limitations period for legal malpractice against “an attorney” is tolled while “[t]he attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred.” Before yesterday’s Supreme Court decision (just its second this month) in Beal Bank, SSB v. Arter & Hadden, LLP, case no. S141131(Sept. 27, 2007), the court of appeal had split on the question of whether the statute of limitations for legal malpractice is tolled against the former firm of an attorney who continues to represent the client after leaving…
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So Your Child Wants to Be a Lawyer
If you’re determined to set your kid on the path to lawyering at an early age, you might consider The ABA Journal U.S. Supreme Court Coloring and Activity Book. That link leads to a description that includes this more-than-likely true statement: “It’s the first SCOTUS-centric publication to come with its own box of crayons.” The ABA post includes links for purchase and PDF downloads of sample pages featuring Sandra Day O’Connor and John Marshall.
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1 Hit, 1 Run, No Errors in this Hit-and-Run Case
Courts often wrestle with how many charges may be brought against an accused for a given incident or course of conduct. Here’s the question the court of appeal faced in People v. Newton, case no. G037968 (4th Dist. Sept. 27, 2007): The issue before us appears to be one of first impression: where an accident results in injury to more than one person, and the person causing the accident flees the scene, is there a single violation of section 20001 [hit and run] or are there multiple violations? The answer seemed pretty obvious to me. The driver hit once and ran once, regardless of how many people were injured in…
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Mandate Unavailable to Compel Property Reassessment
In Little v. Los Angeles County Assessment Appeals Boards, case no. B195610 (2d Dist. Sept. 27, 2007), the court of appeal holds that a property owner may not challenge a property assessment by way of petition for writ of mandate under Code of Civil Procedure section 1085. During the real estate downturn of the 1990s (check this out for more details), Little had successfully sought a reduction in the assessment roll base year value for his multi-unit property from $790,000 to $480,000, based on a decline in value. He then sought and obtained a second reduction to $288,000, which increased to $304,000 by 2003 from annual 2 percent increases. When…
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Gobbledygook Award Winners
Party of the First Part has announced the winners of the Golden Gobbledygook Award, including a link to the first prize winner: an information for conspiracy, money laundering and other crimes, which includes a sentence more than 1,000 words long. With writing like that, you could write the entire Jeff Skilling brief in just 58 sentences.
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Skilling’s 58,922-Word Brief Accepted by Fifth Circuit
The WSJ.com Law Blog reports that the Fifth Circuit has granted former CEO executive Jeff Skilling’s request to file an overlength brief. WSJ.com has posted the Fifth Circuit’s order, which allows Skilling to file his brief of 58,922 words — 44, 922 words over the normal limit, or more than 4 times the maximum length provided by the rules — and grants permission for the government to do the same. My round-up of coverage on Skilling’s request several weeks ago, including links to substantive analyses of his arguments, appears here.
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Law Prof Seeks Postponement in Federal Rules Amendments
Civil Procedure Prof Blog links to a letter/white paper from Professor Jeff Parker of George Mason University School of Law, in which he asks Congress to delay implementation of the changes to the Federal Rules of Civil Procedure. The amendments are intended largely as a “re-styling” of the rules without substantive change, but Professor Parker’s not so sure. Here’s an excerpt from the abstract: I recognize that this is an extraordinary request, but this year’s pending amendments also are extraordinary, as they will completely re-write each and every provision of the Civil Rules for the first time in their 70-year history. More fundamentally, they adopt a novel concept of rule…
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A New Take on Tobacco Litigation
In Sanders v. Brown, case no. 05-15676 (9th Cir. Sept. 26, 2007), a smoker sued four tobacco companies. Old news, right? But Mr. Sanders didn’t sue them for making him sick. Nor for defrauding him about the addicitveness or ill health effects of tobacco. Nor for engineering cigarettes to enhance their addictive properties. No, Mr. Sanders sued because these companies were charging him too much for a pack of smokes. Specifically, Sanders alleged that the companies were engaged in a price-fixing scheme enabled by the terms of the Master Settlement Agreement reached between the companies and 46 states (and several territories) and the various state statutes implementing the MSA terms.…
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What Makes a Necessarily Included Offense?
In People v. Murphy, case no. C046923 (3d Dist. August 29, 2007, modified Sept. 25, 2007), the defendant contended that she was “improperly convicted for both selling the cocaine rock in count one and possessing that same rock for sale in count two, a necessarily included offense.” The record showed that the defendant was actually accused of possessing two cocaine rocks and did not show upon which rock the jury founded the conviction on the count for possession for sale. The court concludes the conviction on multiple counts was proper because the applicable test — whether the statutory elements of the greater offense include all of the statutory elements of…
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Footnote Furor
Two posts at legal writing blogs Tuesday about footnotes. Raymond Ward at the (new) legal writer links to a paper at SSRN (Social Science Research Network) by Professor Douglas Abrams called “Those Pesky Footnotes — Part I.” According to Ward: Professor Abrams divides footnotes into two groups that most of use are familiar with: citation-only footnotes and textual footnotes. Citational footnotes can be useful, Prof. Abrams writes, if they are kept lean. They show the support for the writer’s assertions without cluttering up the text. Textual footnotes, on the other hand, are usually useless to briefwriters for one simple reason: hardly anybody reads them. And anything that is not read…
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Hearsay Admissibility Conditions Blend Into Each Other
A hearsay statement regarding the infliction or threat of physical injury upon the declarant is admissible if it meets the conditions of Evidence Code section 1370, subdivision (a), which include that the statement was made “at or near the time” of the infliction or threat and that the statement was made under circumstances that would indicate its trustworthiness. In People v. Quitiquit, case no. D050385 (4th Dist. Sept. 12, 2007), the Court of Appeal says that a declarant’s statements that the defendant had caused her neck injury seven weeks earlier were not made “at or near” the time of infliction. Thus, the statements were improperly admitted, and Quitiquit’s conviction for…
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Fiction Writing Techniques in Legal Briefs
Those interested in following up on this post regarding fiction-writing techniques in legal briefs can check out an article by M.C. Sungaila of Horvitz & Levy, “The Literate Lawyer: Fiction-Writing Principles Can Generate Courtroom Success” — if you’re interested enough to fork over $2 to read it at the online Daily Journal. Otherwise, you’ll have to head to the law library to read it in the hard copy of the September 17, 2007 issue. Thanks to The Appellate Practitioner for the link.
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C.C.P. Section 1985.3 is Toothless
Just one decision out of the Court of Appeal yesterday, but it’s a doozy. In Foothill Federal Credit Union v. Superior Court, case no. B198664 (2d Dist. Sept. 24, 2007), the court holds that consumers’ claims against a credit union for disclosing consumer records in response to a subpoena are barred by the litigation privilege of Civil Code section 47. At least, that’s the way the court describes its holding, but there is more at work in the decision. The impact of this decision is hard to understate in light of Code of Civil Procedure section 1985.3, which requires a party seeking certain forms of consumer records in discovery to…
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Vindictive Prosecution Dismissal Gets De Novo Review
If you had been stopped twice at the U.S. – Mexican border trying to smuggle in illegal immigrants, told the customs officer both times that you had been paid to drive the vehicle across the border — and in one case admitted that you knew the compensation was for alien smuggling — and you weren’t prosecuted in either instance, you might figure that when you are prosecuted — this time, for trying to bring marijuana across the border — you’re better off explaining that you thought you were smuggling aliens instead of marijuana. That’s exactly how Sharon Ann Jenkins testified in her own defense at trial. While the jury was…
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Site Upgrade Notes and Request for Assistance
I upgraded the blog from WordPress 2.2 to WordPress 2.3 overnight. You may see some minor fluctuations in the site as a result. For example, I have removed the site stats from the right sidebar because the plug-in does not seem compatible with this new version of WordPress. No big loss. Nobody was looking there to see that I have posted more than 71,000 words in 226 posts, right? As far as commenting goes, comment previews seem to be working. The Blogfollow plug-in does not seem to be working, but I’d appreciate it if someone else would try posting a comment to this post so I can be sure the…
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An Attorney’s Individual Right to Appeal Court Criticism
This post at Split Circuits excerpts a recent Federal Circuit case noting a split among the circuits as to when an attorney in a federal case has a right to appeal separately from his or her client. That decision, Nisus Corp. v. Perma-Chink Systems, Inc., case no. 06-1592 (Fed. Cir. August 23, 2007) notes that while the Seventh Circuit requires the imposition of monetary sanctions before an attorney may appeal a court order critical of the attorney, other circuits, including the Ninth, “permit an attorney to appeal from a judicial order in which the court states that the attorney has engaged in professional misconduct, holding that such a declaration is…
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2007 Annual Report on Judicial Branch
This press release (PDF dowload) from the Judicial Council of California announces the release of its 2007 Annual Report (PDF Download). [The report is] a summary of the judicial branch’s significant progress and challenges in improving court administration and equal access for all Californians. *** The report highlights the branch’s efforts, in cooperation with the legislative and executive branches of state government, to improve service to the public and describes key trends in court caseloads and workloads.
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One for the Little Guy . . . So Far
Professor Martin at California Appellate Report notes an interesting angle that I missed in Holcomb v. Wells Fargo Bank, N.A., case no. G037638 (4th Dist. Sept. 20, 2007): Holcomb is a pro se appellant who prevails against a corporate giant on the appeal. Mr. Holcomb succeeds in partially reversing the trial court’s order sustaining Wells Fargo’s demurrer. There’s still a long road ahead for his case, of course. Time to look for a lawyer, I think.
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Federal Judicial Review of Arbitration Decisions
I’m pretty sure that Judge Bea didn’t intend to give me a chuckle in the first paragraph of his opinion in Collins v. D. R. Horton, Inc., case no. 05-15737 (9th Cir. Sept. 24, 2007). But he did. Appellants contend their motion [for summary judgment] should have been granted because the arbitrators manifestly disregarded the law when deciding not to apply offensive non-mutual collateral estoppel because judicial review of an arbitration award under the Federal Arbitration Act (“FAA”) is more limited than judicial review of a district court judgment. We hold the arbitrators did not manifestly disregard the law because no “well defined, explicit, and clearly applicable” law existed to…
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OK to Strip Search 13-Year-Old Girl for . . . Ibuprofen?
One look at that blog headline and it’s no surprise Friday’s Ninth Circuit decision in Redding v. Safford USD #1, case no. 05-15759 (9th Cir. Sept. 21, 2007) has garnerd some attention in the legal blogosphere. Predictably, some of the reaction has been at a gut level. See, for example, California Appellate Report or Decision of the Day. This is a section 1983 action by the 13-year-old girl against the school officials and the district for an alleged violation of her Fourth Amendment rights by searching her for pills. The search was initiated after a student claimed to have become ill from some pills distributed by the plaintiff and pills…
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Drawbacks to Form Files
In his post entitled “Legal writing isn’t what it shoud be #4” — as its title implies, the fourth in a series of such posts — UT Law Professor Wayne Schiess of Wayne Schiess’s legal-writing blog gives four drawbacks to relying on forms. Setting the stage: Why do lawyers use forms (or “templates” or “precedent documents” as some prefer to call them) ? To save time, to save money, to give clients a better value, and to take advantage of previous documents that have worked. So forms are a necessity. No lawyer can get by in a typical practice today without them. The time and expense that would result from…
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ASU Ross-Blakley Law Library Blog and Podcast Launched
The Arizona State University Ross-Blakley Law Library recently launched a blog and podcast. According to the announcement, both will cover research tips, and the blog will include online tutorials and reviews of legal information sources. Thanks to Law Dawg Blawg for the link.
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BlogRush Widget Added to Sidebar
Regular readers will notice the addition of the BlogRush widget in the right sidebar. Go ahead, take a look. You can’t miss it. The widget displays headlines and blog (or author) names from feeds of legal blogs registered with BlogRush. Just click on a headline in the widget — after you’ve read the brilliant new content on this blog, of course — to go to the corresponding post on the linked blog. BlogRush is a blog syndication network designed to increase traffic to its members. Every time that widget loads, I earn “syndication credits” that get my blog posts exposure in the BlogRush widgets on other legal blogs. Click my…
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IDEA Rights not Enforceable under Section 1983
In Blanchard v. Morton School District, case no. 06-35388 (9th Cir. Sept. 20, 2007), the Ninth Circuit becomes the fifth federal appellate circuit to hold that rights under the Individuals with Disabilities Education Act (IDEA) are not enforceable by an action under 42 U.S.C. section 1983. The court acknowledges that two circuits have gone the other way and that the Eighth Circuit has an intra-circuit split on the issue. The case arose when the mother of a disabled child sued to recover damages for lost earnings and suffering endured during her eventually successful drive to obtain benefits for her son under the IDEA. The district court granted summary judgment, finding…
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FRAP 4(a)(7)’s 150-day Period Sets Time of Entry of Judgment, not Time to Appeal
Sometimes, the rules seem rather tangled. But go through them slowly, and they usually all “come together.” Such is the case in Menken v. Emm, case no. 05-164637 (9th Cir. Sept. 19, 2007), in which the appellees argued that the notice of appeal was not timely. The district court granted a motion to dismiss for lack of personal jurisdiction but never entered a separate order. The issue thus became when the 30-day deadline for filing the notice of appeal was triggered. The analysis is rather straightforward. The date of entry of a judgment triggers a 30-day deadline to appeal from it. (Fed. R. App. P. (“FRAP”) 4(a)(1).) For this purpose,…
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Your Introduction Shouldn’t be an Introduction
Evan Schaeffer at The Illinois Trial Practice Weblog offers some good advice on how to start a memorandum or brief: At the trial court level, most lawyers begin their briefs with an “Introduction” section. There’s nothing wrong with this approach, but it leads to the mistaken notion that you should actually put an introduction in the introduction. You shouldn’t. And that’s just the “introduction.” Ba-dum-bump. Read the whole thing. I got this link from this post at Legal Writing Prof Blog, which has more.
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Order Enforcing Legislative Subpoena is Appealable
Taxes sure seem to be at the heart of a lot of disputes between citizens and their government. Such is the case in City of Santa Cruz v. Patel, case no. H030689 (6th Dist. Sept. 18, 2007), where wrangling over the right of the government to audit business records to ensure compliance with tax law leads to an opinion on the appealability of orders compelling compliance with legislative subpoenas. The City sent out a notice to hotel operators that it would be conducting audits to determine operators’ compliance with an occupancy tax ordinance under which hotel operators were required to collect a tax on lodging and remit the proceeds to…