You wouldn’t know it from my blogging output lately, but I’m still here and will continue blogging. I happen to be moving into a new office during a heavy work week, so actually looking at the newly published cases is a real luxury right now. I may get a post or two up this week, but they’re more likely to be links to other blogs rather than original commentary on any new developments. I’ll resume my regular blogging schedule next week. If you haven’t responded to the survey in the right sidebar yet, why not take the opportunity to do it now? The survey comes down Monday morning, June 2.
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Should There Be a Wrongful Incarceration/Execution Exception to Attorney-Client Confidentiality?
Professor Colin Miller at Evidence Prof Blog thinks so, and links to a draft of his essay advocating the exception. The abstract of his essay references Alton Logan, a man wrongfully imprisoned for 26 years while lawyers who knew the identity of the actual killer stood mute in order to protect client confidences: In 1982, Alton Logan was convicted of first degree murder based upon being the trigger man in a robbery gone wrong at a Chicagoland McDonald’s. What the jury who convicted Logan did not hear was that another man, Andrew Wilson, confessed to the crime Logan allegedly committed. The problem was that Wilson confessed to his attorneys, public…
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Rehearing Petition Filed in Marriage Cases
What a surprise! A petition for rehearing was filed today in In re Marriage Cases. The petition was filed by the Proposition 22 Legal Defense And Education Fund, but I can’t find the petition on the web anywhere.
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The Influence of the California Supreme Court
There are apparently a couple articles out there ranking California’s courts, and its Supreme Court, tops in the nation . . . whatever that means. I say “apparently” because I have to take others’ words for it. I’m way too busy to read the articles themselves. For those of you with time, the more recent of the two is here (hat tip: Civil Procedure Prof Blog). Texas Appellate Law Blog has a PDF download of the earlier article. One nugget I gleaned in my quick skim of the more recent article: while the first study ranked California’s Supreme Court #1 in influence on other states, a survey by the U.…
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Don’t Ask, Don’t Tell . . . and Don’t Dismiss
The military’s “Don’t Ask, Don’t Tell” (“DADT”) policy on homosexual service members is put through the wringer in Witt v. Dept. of the Air Force, case no. 06-35644 (9th Cir. May 21, 2008). The Ninth reverses the district court’s Rule 12(b)(6) dismissal of Major Witt’s complaint alleging that her impending discharge on the ground of homosexuality violates substantive due process, procedural due process, and equal protection. The key to the ruling was the Supreme Court’s decision in Lawrence v. Texas (2003) 539 U.S. 558, On substantive due process, the court determines that Lawrence requires more careful scrutiny of DADT than the Ninth’s previous standard of rational basis review, even though…
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Tips from Appellate Court Research Attorneys
Donna Bader at Appeal to Reason shares some briefing pointers offered by a couple of attorneys from her local appellate court. I was glad to see a practice of mine validated: “Wondering whether to include citations to the record in the argument, rather than just the Statement of Facts? Yes, please do.” There’s plenty more.
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Participate in My Reader Survey, and More About Judges Reading Blogs
Last Friday’s post about blog-reading judges got my curiosity going about who is actually reading this blog. I’ve placed a survey at the top of the right sidebar asking you which of the responses best describes you. I would appreciate your participation, especially the extra effort any e-mail or RSS subscribers make to actually visit the blog to do so. You only need to respond once (in fact, if I have it set up right, it won’t let you respond more than once, even if you try it on different days). Select your response, then click the “Vote” button. That will take you to a bar graph showing the results…
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Judges Read Blogs
I’ve noted before some intersections between actual law practice and blogging. There was the blogging jury foreman and the blog where lawyers complained about judges, for example. There are even some blogs by judges (look in the left sidebar). Now, we have at least anecdotal evidence that judges are reading blogs. Texas appellate lawyer D. Todd Smith posts at his Texas Appellate Law Blog about his chance encounter with a blog-reading judge at a professional event. In fact, the judge is not just a blog reader, but a regular reader of Smith’s blog. So, now I’m really curious. I’m going to fiddle around with some of the poll gadgets for…
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Remember, Don’t Be Shy
I told you last October not to be shy when you move to recover attorney fees. Steele v. Youthful Offender Parole Board, case no. C053553 (3d Dist. May 15, 2008) is the most recent case in point. Defendant appealed from a judgment for plaintiff on a retaliation claim under the Fair Employment and Housing Act (Govt. Code, § 12900 et seq.). Damages were barely $9,000, but plaintiff’s attorney was awarded more than $146,000 in fees, which is almost certainly what drove the appeal. Defendant’s only contention regarding fees on appeal, however, was that the fee award must be reversed because the underlying judgment must be reversed. No claim that the…
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Footnotes and Same-Sex Marriage
Not a pair of topics that you’d automatically put together, but bear with me . . . Legal writing enthusiasts differ on the proper use of footnotes, and I’ve posted before about the debate. One appellate jurist addressing my law school class advised that if a point is important enough to go in the brief, then it’s important enough to go in the body text of the brief rather than in a footnote. Ray Ward at the (new) legal writer noted that some people even presume that footnotes in appellate briefs are not likely to be read. Yet, I’ll bet every lawyer at least remembers learning in Constitutional law class about…
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In re Marriage Cases is Out . . . and the Winner Is . . .
Well, I was wondering how quickly the first blog post would go up about this morning’s California Supreme Court decision striking down California’s ban on same-sex marriage (at least that’s how I’ve seen the decision characterized — I haven’t read the 161 pages of opinions yet). The winner, at least among the approximately 200 law blogs in my feed reader, is Legal Pad, at 10:10 a.m. But I doubt they’re speed readers over there, for the post is pretty spartan. But they promise regular updates throughout the day, and since it’s a California law blog, it’s probably the blog to watch throughout the day.
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A Conspiracy Theorist’s Delight
In In re Complaint of Judicial Misconduct, case no. 07-89012 (Judicial Council of the 9th Cir. May 14, 2008), the complainant was an attorney who was also a plaintiff in a civil action. He filed a complaint against both the district judge and the magistrate judge to whom the district judge referred the civil case. The title of this post relates to the charges made by the complainant. The complainant alleged misconduct regarding both judges with respect to discovery rulings and their decisions to continue with the case following his filing of a notice of appeal. Chief Judge Kozinski’s order characterizes these charges as challenges to the rulings themselves. Complainant…
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In re Marriage Cases Opinion on the Way
The California Supreme Court filed its notice of forthcoming opinion today for In re Marriage Cases, so expect the blogosphere — legal, political, personal, financial — to be abuzz tomorrow when the opinion is filed. For anyone who’s been under a rock, here’s the summary of the cases from the Supreme Court website: Petitions for review after the Court of Appeal reversed and affirmed judgments in civil actions. This case includes the following issue: Does California’s statutory ban on marriage between two persons of the same sex violate the California Constitution by denying equal protection of the laws on the basis of sexual orientation or sex, by infringing on the…
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Successive or Amended Habeas Petition?
Sometimes, it’s nice to be pro se. I’m not sure the pro se habeas petitioner in Woods v. Carey, case no. 05-55302 (May 13, 2008) would have received the same relief if represented by counsel when he filed a second habeas petition under 28 U.S.C. § 2254 while his first was pending in the district court. Both petitions asserted deprivation of rights in connection with his parole eligibility and procedures, and the district court dismissed the second petition as an impermissible “successive” petition. The court of appeals reverses with instructions to contstrue the later petition as a motion for leave to amend the original petition. The Ninth first lays out…
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California Supreme Court Rejects De Novo Review of Recusal Determinations
In two cases with a local angle – both originating in neighboring Santa Barbara County and thus reaching the Supreme Court through our local Court of Appeal (Second District, Division Six) – the Supreme Court reaffirms that recusal motion determinations are reviewed only for abuse of discretion. It rejects the justifications offered by the Court of appeal for heightened review in cases of “first impression,” capital cases, or the reviewing court’s “independent interest” in “policing conflicts of interest and addressing potential errors at the earliest opportunity” In Haraguchi v. Superior Court (People), case no. S148207 (May 12, 2008), the Santa Barbara County deputy district attorney assigned to prosecute the accused…
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Help Write the Revised Ethics Rules
The Rules of Professional Conduct of the State Bar of California are being revised, and you are invited to comment on the proposed revisions to thirteen rules. The revision commission is a long way from done; this public comment opportunity is an intermeduiate step in a long, long process, which is spelled out in detail at the link. But it is your opportunity to be heard, so head to the link if you’re interested. Deadline for comments is June 6, 2008, and they may be submitted in writing wither by snail mail or over the web. Detailed instructions at the link.
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Spoon-Feed the Appellate Judges
Image via Wikipedia That’s just one piece of advice offered by Seventh Circuit Judge Richard Posner in his turn at the ABA Section of Litigation’s “Tips from the Trenches” column, titled “Convincing a Federal Court of Appeals.” Attorneys who fail to take into account that the appellate judges are not specialists and have a limited time to deal with each case are making a mistake; a judge “depends on the lawyers to provide enough background in the field out of which the case emerges to orient” the judge. Tip no. 2: don’t think you can win by “rubbing the judges’ noses in the precedents.” This terrific column provides lots of practical…
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Narrowing Appellate Issues
D. Todd Smith makes a good point at Texas Appellate Law Blog in the context of explaining why he likes oral argument: [O]ne of my favorite aspects of oral argument is that it forces you to distill your case down to the barest elements. As the appellant, if you can’t persuade the court based on your best two or three points—which should all be covered thoroughly in your brief—you’re probably going to lose. Hear, hear. I think the same approach pays off in briefing. Rarely do you read an opinion that refers to a “scattershot” or “shotgun” approach by the appellant where those terms aren’t used (at least implicitly) insultingly…
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Reasonableness Governs Accidental Shooting Inquiry
Image via Wikipedia There’s an important legal point in Torres v. City of Madera, case no. 05-16762 (9th Cir. May 7, 2008). But before I could get to it, I had to get by my amazement at the facts, which are horrifying. This Section 1983 action was brought by survivors of an arrestee who, while handcuffed and in the rear seat of a patrol car (and screaming and kicking at the back window), was shot and killed by a police officer who mistakenly unholstered and fired her Glock semi-automatic pistol instead of her Taser M26 stun device. The Court of Appeals called her Glock (a Glock is pictured right, though…
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Welcome, California Lawyer Readers!
Welcome to all first-time visitors led here from the mention of me and the blog in the May 2008 California Lawyer article, Debate Heats Up Over Unpublished Opinions. (For those who haven’t seen the piece, it highlights the recent case of Hild v. California Supreme Court (No. C-07-5107-JCS (N.D. Cal. filed Oct. 4, 2007)), which the article describes as arguing “that the state’s publication rules violate Californians’ due-process and equal-protection rights by creating ‘a de facto policy of refusing review of unpublished decisions in civil cases.'” The piece discusses the case in the context of the ongoing debate over whether the rules should allow citation to unpublished opinions.) My original…
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Red Light for Jurisdiction
Most lawyers are familiar with the general rule that a trial court loses jurisdiction to act in a case upon the filing of a notice of appeal. There are actually a surprising number of exceptions to that rule . . . but the amended judgment in People v. Bhakta, case no. B190437 (2d Dist. May 6, 2008) is not one of them. This was a public nuisance case brought by the People against the owners of a downtown motel under the “Red Light Abatement Law” to abate prostitution activity at the motel. The court entered a permanent injunction, and by stipulation the People were given an extended time to apply…
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Low-Tech Proofreading
Redlines, spell checking, auto-numbering, auto-capitalization, auto-page numbering . . . has high-tech document creation made us lazy proofreaders? For some great low-tech proofreading tips, see Beyond Redlines and Spell-Check: Proofreading Tips from the Dark Ages (PDF Download) from Delaware attorney John J. Paschetto, published in the February 2008 issue of The Practical Lawyer magazine Hat Tip: Legal Writing Prof Blog.
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The Non-English-Speaking Witness
“Tower of Babel” Image via Wikipedia The law is a profession where words really, really matter. Sometimes, ensuring the same meaning across languages can be difficult, especially in the absence of an available literal translation. Attorneys who find themselves dealing with witnesses who don’t speak English at all or not well enough to communicate in court will want to to check out How to Work with Court Interpreters at Winning Trial Techniques. The post provides a 21-item checklist. both of things to do and things not to do, to ensure that you maximize the witness’s effectiveness. As with almost everything we do, preparation is key. About a third of the…
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Who Knows Why Some Parties Appeal?
Sometimes a decision just makes no sense, at least to someone looking at it from the outside. Such is the case with Profit Concepts Management, Inc. v. Griffith, case no. G039077 (4th Dist. May 5, 2008). Oh, the merits make sense. California-based Profit Concepts sued former employee Griffith in California under an employment agreement that contained an attorney fee provision. But Griffith lived in Oklahoma and successfully moved to quash service for lack of personal jurisdiction. The trial court awarded Griffith contractual attorney fees as the prevailing party. Reasonable enough. The court rejects Profit Concept’s argument that because the lawsuit, which it had resumed in Oklahoma, left contract issues pending…
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Brief Upgrade Outage this Weekend
Time to upgrade WordPress again, this time to version 2.5.1. I’ll be doing that this weekend, so the blog may be unavailable briefly on Saturday or Sunday. I tend to do these things in the wee hours, when there’s less traffic, to minimize the disruption. But you never know.
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Clearly, this is Blatantly Obvious
I was searching for an old post at Wayne Scheiss’s legal-writring blog and accidentally ran across this nugget from 2005 on use of the word “blatant”: I’m starting to put it in the same category as “clearly” and “obviously.” It does not persuade. It only draws attention to itself as an effort to sound persuasive. Anytime a word draws attention to itself, it’s not good. And the attention it draws is therefore usually negative attention. I won’t use it in my writing.
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JALWD Online
From Ray Ward at the (new) legal writer: Thanks to Legal Writing Prof Blog, I learned that the entire Journal of the Association of Legal Writing Directors is on-line—every issue, every article, in both HTML and PDF. If you’ve never read the JALWD, do yourself a favor and pay a visit. He directs you to Legal Writing Prof Blog for instructions on how to submit to JALWD “[i]f you’re brave enough to actually want to write an article” for them. One should be prepared, I assume, for some extensive constructive criticism!
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Update on Free Online Legal Research
Robert Ambrogi’s Lawsites has this update on free on-line case law resources. The most notable link is to a review of PreCYdent, which may be living up to its hype as “the Google of legal research.” Says the reviewer: I was stunned by the results of my search [for “in personam jurisdiction”] on PreCYdent. The top six cases were the leading U.S. Supreme Court cases I studied in Prof. Reimann’s jurisdiction class. Each of them is fundamental to an understanding of the application of personal jurisdiction in federal courts. I have never seen a such a highly relevant set of search results on any electronic case search engine. Not in…