I almost feel a little guilty celebrating my blogging anniversary today reading that Robert Loblaw at Decision of the Day is hanging up his keyboard. His announcement says he is saying “farewell to the frenzy” and describes the history of his blog. Many law bloggers, including yours truly, will miss his writing, which I once described as “Gold . . . Pure Gold.” He’s done a stellar job for years, If I tried to keep up the pace he did, I probably would have been beaten into the ground long ago. When I put his blog in my top 10, I wrote, “I still can’t figure out how Loblaw gets…
-
-
Happy Birthday to The California Blog of Appeal!
Image via Wikipedia per GNU Free Documentation License The California Blog of Appeal launched at 3:12 pm on April 30, 2007, with a first post entitled “The California Blog of Appeal Will Now Come to Order!” (Seemed clever at the time, anyway.) I don’t think I’ve wandered far from the vision I described in that post. So, if I may be self-congratulatory for a few minutes . . . This is the 539th post on this blog. The 539 posts span 135 categories (I may be going a bit overboard on cateogrization) and altogether contain more than 164,000 words. That’s the equivalent of nearly a dozen maximum length civil appellate…
-
Blogroll Addition: Judgment Day
I discovered the new blog Judgment Day a couple of weeks ago, when my stats page showed that it linked to The California Blog of Appeal. The blogger there is an anonymous attorney who dies work as appointed counsel on criminal appeals in New York and goes by the nom de blog (or is that nom de blogue?) Blakely, after Blakely v. Washington (2004) 542 U.S. 296 . Notwithstanding his (or her) New York home base, Blakely has already had a number of posts relevant to California practice. Welcome aboard, Blakely. And congratulations on the second-best blog name ever (according to me, that is).
-
Attorney Fee Program Coming Up in Los Angeles
One of the organizers of an upcoming attorney fee CLE program in Los Angeles was lucky enough to reach me by phone this morning before I was too embroiled in my work, and asked if I would be kind enough to help publicize the program. Well, I’m a sucker for a request like that, and especially so in this case, since attorney fees are of particular interest to me (and The Pro Bono Road to Riches is still one of the most traffic-generating posts I’ve had). So, here’s the skinny: Date: June 19, 2008 Time: noon- 5 pm Place: Southwestern Law School (Los Angeles) This description of coverage comes straight…
-
Scalia and Garner Together for $29.95
For their book, of course. (Mr. Garner’s speaking fees are considerably higher, I’m sure.) Making Your Case: The Art of Persuading Judges is scheduled for release today. An article describing Justice Scalia’s and Mr. Garner’s collaboration is here. Hat tip: CAAFlog.
-
Light Posting Week
Things are a little crazy for me this week, so posting will be light. In fact, I’m not sure I’ll post anything other than the posts I already have in the queue to publish throughout the week. That means I won’t have any breaking news on cases. But I will have a few posts trickling out throughout the week, including a special anniversary post on Wednesday.
-
i-Cyber-Meta-Digital Law
This post highlights a post I included in Blawg Review #155 and a related post I ran across since then. Both concern how to stay out of trouble regarding electronic data. The first, featured in my previous post, is The Multipass Erasures Myth from EDD Update, a blog about electronic data discovery. Just how much “scrubbing” of your hard drive does it take for that data on your hard drive to be unrecoverable? I think you’re going to be surprised at the answer. The second is a post on the ethics of mining metadata in documents received from adverse parties. What is metadata? Well, the Wikipedia article on metadata is…
-
If It was Good Enough for the Framers . . .
Image from Wikipedia Ray Ward posted several months ago that starting a sentence with a conjunction is okay in an appellate brief. I wholeheartedly agree. I think it can make a sentence more powerful. Ward justifies the practice in part because the Unites States Constitution includes sentences starting with conjunctions and concludes, “So if it’s good enough for the U.S. Constitution, it’s good enough for that brief you’re working on.” But don’t take that logic too far. One of the constitutional excerpts Ward provides is Article II, section 1: “And they shall make a List of all the Persons voted for, and of the Number of Votes for each…. But…
-
Beyond E-Filing
Wagner v. Wagner, case no. B197703 (2d Dist. Apr. 23, 2008) is more than just the latest installment of a familiar sad story: siblings fighting over Mom’s estate. It introduces the secret mental claim. Claire moved in with and took care of her Alzheimer’s-stricken mother for the four years preceding her death. Claire was the successor trustee to her mother’s living trust, so she became the trustee upon her mother’s death. Brother Kent grew impatient and dissatisfied with his sister’s administration of the trust, and convinced her to hire a lawyer. At a meeting of Kent, Claire, and the attorney, Claire told Kent that she intended to file a claim…
-
Boston Legal and the Supremes
Image via Wikipedia From Harmful Error: [Tuesday] night’s episode of Boston Legal included a fairly amazing, even if a tad bit on the fantasy end of the spectrum, speech to the US Supreme Court, before actors who look very much like the real justices. For more details and alink to the 10-minute clip on Youtube, see the post. If I run across any more blogs posting about the episode, I will link to them from this post. A while back, I told you about a lawyer who blogs about episodes of The Office, tallying up the liability incurred in each episode. Maybe someone — someone with a lot of time…
-
Join the Legal Writing Institute!
Legal Writing Prof Blog invites everyone to join the Legal Writing Institute. LWI is free and open to anyone interested in legal writing or the teaching of legal writing. Go to the membership page to sign up.
-
Ninth Circuit Amends Garcia on Appellate Jurisdiction
According to Ninth Circuit Blog, the Ninth Circuit “came to its jurisdictional senses” with its amended opinion in U.S. v. Garcia, case no. 05-30356 (9th Cir. Nov. 19, 2007, amended Apr. 17, 2008). While I might have said that a little more gently, I agree with the sentiment. I covered the relevant holding regarding appellate jurisdiction in my original coverage: The two defendants challenging their sentences in this case claimed that the trial court erred even though the sentences imposed were within the ranges stipulated in their respective plea agreements made under Federal Rule of Criminal Procedure 11(c)(1)(C). Both defendants contended that the trial court’s miscalculation under the sentencing guidelines…
-
An Easy Cure for Citation Anxiety
Legal Writing Prof Blog links to a paper called Reducing Citation Anxiety, which is presumably intended to put one’s mind at ease regarding citation format in their legal writing. I won’t have time to look at it, but I already have a way of overcoming that anxiety: I keep a copy of The California Style Manual close by as I draft.
-
New Evidence on Appeal?
Odd as it sounds, it is possible in exceptionally rare circumstances. And I do mean exceptionally rare, which is why you almost never see it addressed in the cases. In yesterday’s In re Valerie W., case no. D051056 (4th Dist., Apr. 4, 2008, ordered published Apr. 21, 2008), in which appellants sought reversal of judgments terminating their parental rights, the minors’ counsel asked the court of appeal to take post-judgment evidence, in the form of her declaration, pursuant to Code of Civil Procedure section 909. Section 909 is a little dense in form (it would benefit from being set forth in subdivisions), but worth reading in full (emphasis added): In…
-
Blogroll Addition: Have Opinion, Will Travel
When I started this blog nearly a year ago, I wanted my blogroll to include blogs written by judges. I searched high and low for them, with very few results. Not too long ago, I ran across Have Opinion, Will Travel, a blog by an anonymous appellate judge of unknown jurisdiction. The judge’s blogging goes beyond law, but the legal issues discussed are often interesting. The blogger provides a particularly interesting view on the role of the appellate judge, posted prominently at the top of the blog: Appellate judges sit above the fray as the battle unfolds beneath and when the smoke clears and the dust settles, they descend from…
-
A Reader’s Perspective on Appellate Briefs
It’s one of the first things we’re taught in a law school writing class: write to your audience. Clients, other attorneys, trial judges and appellate courts are four possible, and distinct, audiences, and you write differently for each of them. So insight into what that audience is looking for, and how it approaches your document, is valuable. Professor David Sorkin sets out to provide insight for writers of appellate briefs in his article, Appellate Briefs — A Reader’s Perspective. Its very brief abstract: Appellate briefs should make a court want to rule in the advocate’s favor, and should make it easy for the court to do so. An effective brief…
-
The Limits of Wende
Anyone who does criminal appellate work by appointment for indigent defendants is familiar with People v. Wende (1979) 25 Cal.3d 436. Wende requires the court of appeal to conduct an independent review of the record for error when appointed counsel files a brief representing that he or she has reviewed the record and found no arguable issues. At least, this review is required on the defendant’s first appeal as of right. People v. Dobson, case no. F053531 (5th Dist. Apr. 16, 2008) teaches the limits of Wende. Dobson was found not guilty by reason of insanity and committed to a state mental hospital. Six years later, he was released to…
-
Why Use a Big Firm on Appeal?
D. Todd Smith (pictured) opines at Texas Appellate Law Blog on an article at Technolawyer that offers five reasons why general counsel tend to stick with large firms despite “rumblings about how high hourly rates and associate salary increases may lead them elsewhere.” Specifically, he asks: “Do these reasons apply when a GC is looking for appellate counsel?” He then goes down the list of reasons and concludes that, for the most part, they should not apply to a general counsel’s selection of appellate counsel. In the process, he notes some key distinctions between trial practice and appellate practice that many may not be aware of. Of course, all you…
-
The Ninth Asks the California Supremes for Help
Kimberly Kralowec reports at The Appellate Practitioner: Within the past seven days, the Ninth Circuit has issued two orders asking the California Supreme Court to rule on controlling legal questions pursuant to California Rule of Court 8.548[.] *** Such orders are relatively rare, so it is rather unusual to see two issued within five days of each other. There is no overlap on the panels. Unusual, indeed. Professor Martin says the request in one of the cases is particularly polite and respectful. I’m sure the Ninth is hoping for a better response than they got last October!
-
Sophisticated User Doctrine Applies in California
There were a few posts I linked to in Blawg Review #155 that are worth highlighting in separate posts, just in case people bypassed Blawg Review #155. One of them is Drug and Device Law’s post on the California Supreme Court decision adopting the sophisticated user doctrine in product liability cases, Johnson v. American Standard, case no S139184 (Apr. 3, 2008). I especially like the way the post tackles this important distinction: We’ve often explained that the “learned intermediary doctrine” is just that — a doctrine, and not an affirmative defense. Plaintiffs bear the burden of proving causation as part of their case-in-chief. Plaintiffs must therefore prove that a different…
-
New Blogroll Listing: The Complex Litigator
Image via Wikipedia I’ve added The Complex Litigator, a very young blog, to my blogroll under the “Blogs – 9th Circuit State – California” category. Its subtitle: A California-centric collection of comments and resources concerning the practice and procedures that make complex litigation and class actions uniquely challenging. Every time you think all the legal niches are taken, a new law blog comes along to surprise you. And it starts with one of the best first posts of all time, which may actually describe what a lot of us law bloggers felt when we started blogging. Finally, you gotta love the double meaning in the name. When I read it,…
-
Preserve Your Sentencing Objections
In United States v. Grissom, case no. 06-10688 (9th Cir. Apr. 15, 2008), the Ninth Circuit reviews what it calls “novel circumstances” and looks beyond the form of a sentencing objection to determine whether the government had preserved the issue for appeal. Whether you view the analysis as a more lenient test or simply the application of the old test in new circumstances, it seems likely to lead to more sentencing appeals. Grissom pled guilty to one drug distribution count involving 49 grams of cocaine base in exchange for dismissal of the remaining two counts, which involved a total of 56 grams of cocaine base. The government contended that the trial court erred…
-
An Invited Fax is Not a Defamatory Publication
If you’re worried about what someone might say about you in a fax sent to your office, better keep an eye on your fax machine — at least if you gave the sender reasons to think they could fax you there regarding certain matters. It is just such an invitation — two of them, really — that lost plaintiff her defamation case in Martinelli v. International House USA, case no. B197536 (2d Dist. Apr. 11, 2008). Plaintiff was an attorney whose family also operated an insurance agency and whose niece from Italy was visiting the U.S. on a student visa. Plaintiff enrolled her niece in English classes at defendant International…
-
Get Googly with It
Image via Wikipedia This Month’s California Lawyer has a terrific “how to” article on uses of the Google search engine that many of us perhaps never thought of. Learn how to use Google to search a specific domain, research a patent, search for files by file type, and even search across all U.S. Government sites — and only U.S. Government sites. Some nice little gems in there!
-
Standards of Review, Please!
The appellate practice equivalent of the old real estate maxim “location, location, location” is probably “standard of review, standard of review, standard of review.” Most appellate opinions state very clearly the standard of review that they are applying to a given issue on appeal. In Warner Bros. Int’l v. Golden Channel, case no. 05-55374 (Apr. 15, 2008), the Ninth Circuit panel takes a shortcut. The appeal is from the judgment after a bench trial and the only reference the opinion makes to any standard of review is this: “In light of the findings of fact and words of the contract the parties signed, the conclusions of law (which are not…
-
Chief Judge Kozinski Profiled
Image via Wikipedia All my California readers undoubtedly know this already, but for the benefit of readers elsewhere in the Ninth Circuit, here’s a link to the cover article of this month’s California Lawyer magazine, which is a profile of Chief Judge Alex Kozinski. You do not have to be a subscriber to get to the article.
-
The Supremes on Legal Writing
Interested in hearing — literally — what the Supreme Court Justices have to say about legal writing? You can watch video interviews of eight of the Justices, conducted by Bryan Garner in 2006-2007, at LawProse. H/T De Minimus.
-
Blawg Review #155
Image by DML East Branch via Flickr There once was a blogger named May Who thought he had something to say Then he signed up to host A serial post Blawg Review one five five is today! April is National Poetry Month! Which, in conjunction with hosting Blawg Review #155, makes it Bad Poetry Day here at The California Blog of Appeal. Here’s a haiku version of that introduction: after a weekend considering submissions Blawg Review is here! Ouch. If you’re still reading, allow me to welcome you to Blawg Review #155. Asking me to improve on Blawg Review numbers 1 through 154 is a pretty tall order, and not…
-
Blawg Review Reminder
This has probably been my lightest week of posting since starting this blog nearly a year ago. I’ve just been swamped this week and haven’t had time to surf the web and review all the opinions I wanted to check. Remember, on Monday, April 14, I’ll be hosting Blawg Review #155. It will be a very different type of post than what you are used to seeing here; so much so that regular readers may assume that the site has been hacked. I’ll resume posting on Tuesday.
-
A Hunger for Grammar Guidance?
Image from Wikipedia My biggest day of blog traffic to date (and this blog is nearly a year old) was last Thursday, and more than half of the hits were to my post complaining about the misuse of “which” for “that.” Curious, I checked my Sitemeter stats and saw that a tremendous number of those hits were referred from the Chicago-Kent College of Law, to which I linked in the post. I was ready to attribute the traffic spike to some sort of automated web crawling by the school’s servers, but there were also a huge number of clicks out from my post to several of the links in it.…