Last September, I covered (along with seemingly every other legal blogger) Redding v. Safford USD #1, case no. 05-15759 (9th Cir. Sept. 21, 2007), in which the Ninth Circuit held that a school’s strip-search of a 13-year-old girl for Ibuprofen, for crying out loud, was constitutionally permissible. Today, the Ninth orders rehearing en banc. For a round-up of coverage of the original opinion, see my original post.
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A New Writing Blog
The new writing blog Write to Done isn’t tailored to legal writing, but I find it interesting and helpful and have added it to my blogroll. It is as much (or more) about the process of writing as it is about the end product, and even has a category dedicated to blog writing. Whether you are considering a blog or are already blogging, or perhaps aspire to be another Scott Turow or Vincent Bugliosi, you may find it helpful.
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The Google of Legal Research?
Crime & Federalism recently posted about a new research service called “PreCYdent,” the function of which he briefly describes: It appears to “rank” cases much in the way Google ranks web sites. For example, typing in “qualified immunity” in PreCYdent doesn’t just give you a random list of cases. It gives you the leading cases. Saucier v. Katz, for example, is the leading modern day case on qualified immunity. It’s also the first result. Not all searches run that well, as the writer points out in what amounts to a mini-review, but the service shows promise. You can read more about the service at Right Coast in a post authored…
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Appellate Powerhouse Launches Punitive Damages Blog
New to the blogroll is the California Punitive Damages blog, launched recently by appellate powerhouse Horvitz & Levy. I’m told by Curt Cutting, one of the regular contributors at the new blog (and, I’m pleased to say, a regular reader of The California Blog of Appeal), that besides covering appellate decisions on the topic, the blog will cover “proposed legislation, academic commentary, significant decisions from other jurisdictions, and anything else that relates to California punitive damages litigation.” Congratulations to you and your fellow contributors on your launch, Curt!
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Successive Topic Sentences for Successive Cases
In a four-post series titled “Topic and transition sentences in case explanations,” (part 1 here, with the remaining three immediately following), Wayne Schiess’s legal-writing blog gives a great exposition of how to transform rote sequential introduction of cases into a flowing narrative that uses each case to further develop your argument.
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Grisham Pens “The Appeal”
Perhaps I’m in the minority, but I can’t stomach most of the John Grisham I’ve read. Maybe it’s because The Firm was the first book of his that I read, and I found it (and the movie) excellent, that the others I tried seemed so bad. I thought A Time to Kill was horribly written, The Pelican Brief was inane, and I lost interest in The Client around ten or twenty pages in. After that, I gave up on Grisham, so I’ll concede there’s a possibility I’ve missed some good novels since then. But the title of his latest novel caught my eye. The premise of The Appeal, based on…
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Comedy Club Finds Out there’s Nothing Funny about Appellate Jurisdiction
Even when an appeal arises from a trademark dispute between two parties in the comedy trade, appellate jurisdiction is serious business, as the appellant learns in Comedy Club, Inc. v. Improv West Associates, case no. 05-55739 (9th Cir. Sep. 7, 2007, amended Jan. 23, 2008). In this trademark license dispute in which the district court dismissed all claims in its order compelling arbitration, the appellant had 180 days to file its notice of appeal because the district court did not enter judgment on this appealable order. (Fed. R. App. P. 4(a)(7)(A)(ii).) But the appellant waited 287 days, until the arbitration was concluded and the arbitration award was confirmed, to do…
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Does It Make a Difference to Have Your Client Present at Oral Argument?
Every glimpse into the collective minds of appellate justices usually helps, especially with regard to oral argument, but Donna Bader provides an interesting insight at Appeal to Reason that I’m not sure what to do with. Her observation: Once I questioned some justices about whether they look around the courtroom during oral argument to figure out who the parties [are]. If the attorney sits next to the clients, the answer is obvious. Sometimes, clients sit in the back, leaving the attorney alone to prepare for oral argument. Surprisingly, the justices admitted they had a certain curiosity as to who the participants were. More than that, there was also a curiosity…
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DRI Appellate Advocacy Seminar: February 28-29, 2008
The 2008 DRI Appellate Advocacy Seminar is scheduled for February 28-29 in Orlando, Florida. I was tipped off to the event by New Orleans appellate attorney Ray Ward of the (new) legal writer, who gives this annual seminar a glowing recommendation at his blog: I have been fortunate enough to attend every DRI Appellate Advocacy Seminar ever held, from the first one in 1999 in Washington, D.C. through last year’s in Phoenix, Arizona. The DRI seminars are, in my opinion, the best of their kind in the nation. You can learn more about the presentations scheduled for the seminar from Ray Ward’s post, the DRI website, and this PDF brochure.
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Scope of Decision by Reviewing Court Can Limit Preclusive Effect of Trial Court Ruling
In Zevnik v. Superior Court, case no. B201105 (2d Dist. Jan 18, 2008), the Court of Appeal continues a string of recent cases holding (contrary to older cases) that where a trial court relies on alternative grounds, each sufficient to uphold its decision, and appellate review follows, only the ground relied on by the appellate court has collateral estoppel (issue preclusion) effect. In Zevnik, the petitioners were lawyers sued for malpractice and breach of fiduciary duty arising out of a conflict of interest in representing multiple clients in prior litigation. Petitioners sought preclusive effect for the trial court’s findings on a disqualification motion in the prior litigation, in which the…
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You Can Still Be Fired for Marijuana Use — Even if It’s Medical Marijuana
As expected, Alex Coolman at Drug Law Blog is all over today’s Supreme Court decision in Ross v. Raginwire Telecommunications, Inc., case no. S138130 (Jan. 24, 2008), in which the divided Supremes hold that the Compassionate Use Act, which decriminalized medical use of marijuana, does not preclude an employer from terminating an employee for such use. Coolman’s analysis is a quick fix plus it is very detailed and includes YouTube video of portions of the oral argument and commentary on the tension created with City of Garden Grove v. Superior Court, which I blogged about here. Justice Kennard’s concurring and dissenting opinion in Ross notes Ragingwire’s argument that even Ross’s…
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Jury Foreman’s Blog a Likely Issue on Appeal
A local trial court has just denied a new trial motion based on juror misconduct, where the misconduct was the jury foreman’s blogging about the gang member’s 19-day murder trial while it was going on, including posting a photo of the murder weapon, commenting on the evidence and witnesses, praising his own performance as jury foreman, and criticizing the work ethic of courtroom staff. From today’s Ventura County Star: After sentencing a gang member to prison for murder, a Ventura County judge ripped into the jury foreman Tuesday, holding the juror in contempt of court for writing a blog that exposed details of the case during the trial. The blog,…
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The State of Legal Research Presented in Three Minutes and Thirty-One Seconds
Via Legal Writing Prof Blog comes this short, silent, and mildly amusing film on legal research made by some students at Stanford Law School. Where did these students find the time?
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Inmate Earns SCOTUS Review with Pro Per Cert Petition
Legal Writing Prof Blog reports on federal inmate Keith Burgess’s recent successful pro per cert petition. The post includes links to press coverage and to the petition itself. It’s nice to see clear, compelling writing triumph, regardless of who presents it, especially in light of recent charges that the court tends to favor “superstar” attorneys with an established SCOTUS presence.
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How to Get Started on Improving Your Writing
If you’re looking to improve your writing — and that ‘s something we should never stop doing — check out the three resources suggested by the Ross-Blakley Law Library Blog as excellent starting points.
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Why is New York’s Highest Court not “Supreme”?
It’s a question well outside this blog’s usual jurisdiction, but my guess is that this question crossed the minds of almost all of us during law school, when we learned that New York’s court of last resort is called the “Court of Appeals,” while the trial courts are “Supreme Courts.” Professor Orin Kerr got curious enough to do some Googling on the issue, and posts what he learned — which includes events dating back to 1777 — at The Volokh Conspiracy. So if you’d like to end your week (or start your weekend) with some legal trivia, head over there.
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I Hate Motions for Reconsideration
Another good post from Professor Martin yesterday, this time concerning In Re Marriage of Barthold (1st Dist. Jan. 15, 2008). The court summarizes its holding in the initial paragraphs: The California Supreme Court held, in Le Francois v. Goel (2005) 35 Cal.4th 1094 (Le Francois), that even when Code of Civil Procedure section 1008 (section 1008) precludes a party from moving for reconsideration, a trial court has inherent authority to correct an erroneous ruling on its own motion. In this marital dissolution case, the trial judge denied a post-judgment motion filed by the wife. She promptly filed a motion for reconsideration. The trial judge determined that the motion did not…
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Reviewing State Administrative Agency Decisions
If you wanted to find out the scope of review and the standards of review employed in administrative mandate proceedings generally, you could do a lot worse than look at the discussion at pages 13-14 of Schutte & Koerting, Inc. v. Regional Water Quality Control Board, case no. D048830 (4th Dist. Jan. 16, 2008), which sums it up very nicely.
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Toning Down the Snark
California Appellate Report notes an order from the Fourth District Court of Appeal yesterday in which it modified its original opinion by eliminating a snide comment about lawyering skills. As Professor Martin points out, this is an unusual amendment. Even more interesting to me: the order does not set out the entirety of the language to be deleted. Instead, it references the sentence to be deleted only by the beginning words in that sentence: “Lawyers should learn . . . .” Which gives you a hint that the excised language is a little snarky, and may even prompt the average reader to look up the original opinion. Which you won’t…
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Court of Appeal Takes On Dispositive Motions in Limine
I’ve told you about one or two of my lingusitic peeves before. In Amtower v. Photon Dynamics, Inc., case no. H030386 (6th Dist. Jan. 17, 2008), the Court of Appeal takes on one of my peeves about procedure, and I’m glad to see it. Just prior to trial, the defendant moved in limine to exclude all evidence on one of plaintiff’s claims (the “section 11 claim”) on the ground that the claim was barred by the statute of limitations. The trial court granted the motion. After a jury trial and judgment for defendant on the remaining claims, plaintiff argued on appeal that “the trial court’s use of an in limine…
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Ninth Circuit Oral History Project
This post at the Legal History Blog links to an article in National Law Journal about work on oral histories of the Ninth Circuit, specifically the work of Stanford law professor Michele Dauber with Judge Stephen Reinhardt. As one might expect, the always-present “controversy” over the Ninth Circuit is discussed in the article. Professor Dauber notes one result of that controversy, in what I think is an interesting way to think about it: “People in Maine know about the 9th Circuit. That’s weird,” Dauber said. “No one in California knows anything about the 1st Circuit.”
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More on Appealable Denials of Summary Judgment
Wow, who’d have thought two cases in two days involving interlocutory appeals from denial of summary judgment premised on qualified immunity grounds? Bingue v. Prunchak, case no. 05-16388 (9th Cir. Jan. 15, 2008) actually came out a day earlier than the case in my immediately prior post, but I’m catching up in reverse chronological order, so I saw it second. Anyway, in my first post on the topic, I reminded you that one exception to the general rule against interlocutory appeals is that an order denying summary judgment sought on qualified immunity grounds may be appealed. In Bingue, the plaintiff complained that the court could not review the denial of…
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Appeal from a Denial of Summary Judgment?
Can’t do it, right? Petition for a writ of mandate, instead. Right? Not so fast, as we are reminded by today’s decision in KRL v. Aquaro, case no. 06-16282 (9th Cir. Jan. 16, 2008). The case is an appeal from the denial of summary judgment that was sought on qualified immunity grounds, and the court notes that interlocutory appeal is allowed in such cases. The rule dates back to Mitchell v. Forsyth, 472 U.S. 511 (1985), which applied as its starting point the general rule that a decision of a district court is appealable if it falls within “that small class which finally determine claims of right separable from, and…
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Slogging through Blogging
OK, that’s a litte bit of an overstatement. But Mark Hermann, a partner in my erstwhile employer, Jones Day, has this article in the National Law Journal about lessons learned during his first year of co-blogging at Drug & Device Law blog, and the first of those is that blogging is hard work: First, blogging — or, at a minimum, blogging about substantive legal issues — is hard. Perhaps it’s easy to host a blog that simply pokes fun at current events by commenting on, and linking to, the news of the day. I wouldn’t know; I’ve never done that. Amen and amen! He follows the article up with this…
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Mootness with a Local Angle
Feldman v. Bomar, case no. 06-55675 (9th Cir. Jan. 10, 2008) caught my eye because of its local angle (full disclosure: I may also know one of the appellants; I know a fellow Boat School-er named Bob Puddicombe, but I have no idea if it’s the same guy). The case involves a challenge to an environmental action regarding Santa Cruz Island, one of the five islands in the Channel Islands chain just off our coast here in Ventura (links to sites about the Channel Islands National Park, one of the appellees, are here, here and here; the link to Santa Cruz Island is from one of these sites). As luck…
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Half a Primer on Moral Turpitude Analysis
In Cerezo v. Mukasey, case no. 05-74688 (9th Cir. Jan. 14, 2008), the issue before the court is whether a violation of California Vehicle Code § 20001(a) (leaving the scene of an accident resulting in bodily injury or death) is categorically a crime involving moral turpitude for purposes of 8 U.S.C. § 1227(a)(2)(A)(ii). In concluding it is not, the court walks the reader through the standards for a “categorical approach” to analysis of the issue. When a court fails to find moral turpitude through the categorical approach, its next step is to examine the issue under the “modified categorical” approach. Unfortunately, the court has to cut its modified categorical analysis…
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Legal Acronyms for the Communication Age
Legal Writing Prof Blog has an amusing synopsis of an article titled “Legalese in the Age of IM (Instant Messaging).” If you are internet savvy and familiar with such acronyms as “rotfl” (rolling on the floor laughing) or “omg” (oh my God), then you’ll get a kick out of law-specific acronyms like OFG, 2SL, WADR, and others. Can you guess what they are before looking?
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Ninth Circuit Judicial Complaint Disposition Orders Published Online
Via NLJ’s L.A. Legal Pad comes news that, according to this press release from the Ninth Circuit, “disposition of judicial misconduct and disability complaints against federal judges sitting in the Ninth Circuit will be publicly available via the Internet” starting this month. Three orders are already up. The main page includes links to the governing rules, a page listing the orders, and a downloadable complaint form.
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The Liberty of the Court of Appeal
Several months ago, I posted about a local court of appeal decision, Cuccia v. Superior Court, case no. B197278 (July 16, 2007), that chided the trial judge for not following the rules of stare decisis: The doctrine of stare decisis requires a trial court to follow an unambiguous published holding of the Court of Appeal, even if the trial court believes that the appellate opinion was erroneously decided. This, we had assumed, was fairly obvious to every trial court judge; that is, until now. The court went on to state that a trial court that disagrees with the precedent “should make a record articulating why it believes the binding opinion…
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SCOTUS on Stare Decisis
The Blog of Legal Times has a good summary of the discussion of stare decisis in Tuesday’s U. S. Supreme Court opinions in John R. Sand & Gravel Co. v. United States, case no. 06-1164 (Jan. 8, 2008), including what it sees as an unusual alignment of the justices. The catalyst for the discussion was whether a series of SCOTUS precedents dating back to the 1880s was effectively overruled by a 1990 SCOTUS decision. The competing opinions in John R. Sand & Gravel disagree on the impact of the 1990 decision, with the majority concluding that it did not overrule the earlier cases. I remember my legal writing professor emphasizing…