When I last wrote about law school rankings (in the summer of 2007), it was in response to a post at the Law School Innovation blog rounding up some reporting and commentary on law school rankings, including an article in National Law Journal about a potential boycott of magazine rankings surveys used by the magazines to rank the schools. I don’t know whether any schools actually protested through a boycott, but yesterday’s Wall Street Journal gives the schools more food for thought. Their front-page article, Law School Rankings Reviewed to Deter ‘Gaming,’ discusses the practice of some schools to admit lower-qualified candidates only to their part-time programs, where the qualifications…
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- Appellate Procedure, California Procedure, Discovery, Mandamus/Prohibition, Standard of Review, Writ Practice
An Important Discovery Ruling Overcomes a Deferential Standard of Review
For a prospective appellant (or, as in the case profiled here, the prospective writ petitioner), the “abuse of discretion” standard of review can be daunting, and may even convince the party that the pursuit of an appeal or writ is not worthwhile. Not only does it set a high bar for reversal, but it can be very difficult to define within the circumstances of a case. (I’ve written before about the somewhat hazy nature of the “abuse of discretion” standard of review.) Against this backdrop, Alch v. Superior Court, case no. B203726 (2d Dist. Aug 14, 2008) presents a very interesting discussion of the standard as it introduces its decision…
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A Running Feud Between Courts?
Well, maybe “running feud” is a tad strong, but Legal Pad notes a history of bad blood between a California superior court judge and his district court of appeal. Hat tip: Cal Biz Lit.
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Legal Writing Prof Blog’s Favorites
Check out Legal Writing Prof Blog’s list of favorite legal writing blogs and resources. Hat tip: the (new) legal writer.
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Help Out Law Blogger Kimberly Kralowec
Looks like this is the week for appellate bloggers to embark on projects and solicit help from their readers. Unbeknownst to me until now, the day before I announced my intent to publish a series of posts on the reluctance of lawyers and clients to engage appellate counsel, Kimberly Kralowec (pictured left) at The Appellate Practitioner (better know for her excellent The UCL Practitioner) announced that she will be examining what works when asking the Supreme Court to depublish a case. Toward that end, she’s asking readers to submit successful depublication requests. Send them to her at uclpractitioner@gmail.com.
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“A Sadistic Urge to Torment Lawyers”
Image via Wikipedia I always assume that all of the rules of procedure will be strictly construed against me, and that opposing counsel will be allowed to get away with murder. To me, it’s the smart way to practice: dot your I’s and cross your T’s. In Whitehead v. Habig, case no. G037991 (4th Dist. May 28, 2008, ordered published June 5, 2008), the appellants had appealed a summary adjudication and default judgment on the remaining claims. In opposing the summary adjudication motion, the appellants never filed their own separate statement of undisputed and disputed material facts (Code Civ. Proc., § 437c, subd. (b)(3); Cal. Rules of Court, rule 3.1350(e));…
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Why Are Some Lawyers and Their Clients Reluctant to Engage Appellate Counsel?
UPDATE: This post is included in Blawg Review #174 at Texas Appellate Law Blog. Why don’t some trial lawyers or their clients engage appellate counsel when it comes time for the appeal? Over the years, I’ve heard various reasons advanced for this. Among them: lawyers see no need to hire new counsel for something they can do themselves, lawyers are afraid to lose the client forever to the appellate lawyer or his firm, lawyers and their clients are afraid that the appellate lawyer won’t know enough about the specialized area of law involved in the appeal, clients are too comfortable with the trial lawyer to switch, clients are fed up…
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The Results of the Shootout at the Amicus Corral
In a case that attracted amicus participation of noteworthy proportions, the California Supreme Court holds that a medical provider has no constitutional defense, based on freedom of religion and freedom of speech, to a claim for sexual orientation discrimination under California’s Unruh Act (Civ. Code, § 51). The doctor defendants had refused artificial insemination services to a lesbian and contended that they did so for religious reasons. The Supremes find no such exception under the federal or state constitutions. The court finds that because the Act is a facially neutral and valid law of general applicability, the incidental infringement on religious liberty that compliance requires cannot sustain a constitutional defense…
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Don’t Give Up On Appellate Jurisdiction
The appellate courts are zealous about protecting their jurisdiction. When in doubt, it is not unusual for a court to ask for briefing on the issue even where both sides have assumed jurisdiction. And so the Supreme Court does in People v. Segura, case no. S148536 (Aug. 4, 2008), which is interesting for a couple of appellate wrinkles. First, the background. The issue under review was: whether a prescribed jail term that constitutes a material provision of a plea agreement conferring as its chief benefit, a grant of probation in lieu of a prison sentence, may be modified by the trial court in the exercise of its authority to modify…
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It’s Kennedy’s Court
So says UC Irvine School of Law Dean Erwin Chemerinsky about the U. S. Supreme Court in his front-page piece in this month’s California Bar Journal. Simply put, on issues that are defined by ideology, the conservative position prevails in the Roberts Court except when Justice Kennedy joins with Justices Stevens, Souter, Ginsburg, and Breyer. Occasionally this term, Justice Stevens or Justice Breyer joined with the five most conservative justices to create a 6-3 or 7-2 vote for a conservative result. But never did one of the four most conservative justices — Chief Justice Roberts and Justices Scalia, Thomas and Alito — vote for a more liberal result in a…
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Pepperdine’s Justice Alito Event — Video Available
Pepperdine has video of the conference on judicial opinion writing that I commented on here (actually, I was commenting on Ben Shatz’s write-up of the event). Here’s the description accompanying the video: The Honorable Samuel A. Alito, Jr., associate justice of the United States, spoke on “Lawyering and the Craft of Judicial Opinion Writing” at the School of Law on Wednesday, July 30, to a crowd of more than 200 students, alumni, law professors, journalists, judges, and special guests. Justice Alito was joined by The Honorable Michael W. McConnell, United States Appellate Judge for the Tenth Circuit; The Honorable Walter E. Dellinger III, former United States Solicitor General; Pepperdine School…
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A Judgment that Nobody Noticed Sinks an Appeal
How can the parties and the court all miss the fact that the court entered a judgment? Well, when the document that operates as such isn’t labeled “judgment,” I guess one can occasionally slip by . . . to the appellant’s great misfortune in Melbostad v. Fisher, case no. A119514 (July 23, 2008, ordered published Aug. 4, 2008), in which the court of appeal dismisses the appellant’s challenge to a fee award as untimely. In Melbostad, the trial court granted defendant’s special motion to strike under California’s anti-SLAPP statute (Code of Civil Procedure section 425.16) and entered an order dismissing the complaint “with prejudice.” It subsequently granted a motion for fees brought by…
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The Value of a Good Reply Brief
As much as I keep up with appellate issues, some things catch me by surprise. According to this article: “There has long been debate in appellate circles whether reply briefs serve a worthwhile purpose. Some wonder whether justices even read them.” Really? I’ve never doubted the value of a well-written reply brief, nor have I heard others question their value. Though reply briefs are optional, I can’t imagine I’d ever decide against filing one. If you’d like to read what some appellate justices have to say about them, check out Are Reply Briefs Really Necessary? The Recorder e-mailed all 103 appellate justices in California for their views on reply briefs…
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Flexibility on Appellate Jurisdiction
“Jurisdiction” and “flexibility” are terms that don’t really go together . . . most of the time. But I’ve taken note before of the willingness of California appellate courts to “save” appeals through various devices, such as a generous construction of the notice of appeal, or treating an appeal from a non-appealable order as a writ petition. In fact, these devices are used to save appeals from plainly non-appealable orders. They can also be employed where appellate jurisdiction — or lack of it— is less than clear, as in People v. Segura, case no. S148536 (Aug. 4, 2008), where the Supreme Court avoids deciding the issue by treating the appeal as…
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“E” is for “Explain”
If you’re writing according to a typical “IRAC” formulation, Professor Mark E. Wojcik of John Marshall Law School and the Legal Writing Prof Blog says you’re leaving an important letter out of that acronym. Go to SSRN to download his article from the November 2006 Student Lawyer (yes, 2006, but he just posted the link yesterday) on why adding an “explanation” step to your analysis is helpful.
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Time for Another WordPress Upgrade
I’m behind in upgrading to WordPress version 2.6, so I’m going to try to do it this weekend. That means a brief outage during the upgrade process. Previous upgrades have gone smoothly, and with any luck, the blog should not be down more than about 15 minutes, probably late Friday or Saturday night.
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Report from the Pepperdine Conference on Judicial Opinion Writing
Pepperdine hosted a conference Wednesday on the craft of judicial opinion writing, with a panel that included Justice Samuel Alito. LA appellate attorney Ben Shatz attended and today posts his write-up of the event at the Los Angeles County Bar Association Blog, En Banc. His post is worth a read, especially if you wish you had been there. Two things jumped out at me from Ben’s report. First: Where were all the lawyers? Ben notes that the auditorium didn’t exactly look empty, but wasn’t close to capacity, either, and he wonders if Justice Alito is unpopular with the bar. Second: Tenth Circuit Judge Michael McConnell gave some praise to the…
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My New Digs . . . and New Everything Else
Some of you may have noticed some changes in sidebar information that clued you in to my recent relocation and change of practice name. Most of you probably didn’t, so here’s everything you need to know (more than you need, actually) in one post. First, the new digs. I’ve moved from Ventura to Oxnard, and specifically to the Fisherman’s Wharf area of Channel Islands Harbor, where you’ll find the fine gentleman at right (the one in the yellow coat) standing post in front of the Ventura County Maritime Museum, which is in the building next to my office. I’ve gone from a professional building in a busy part of town…
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Judge Bybee Pokes Fun (Update: He’s Not Alone)
When the Ninth Circuit Court of Appeals judges convened for their conference last year, they did so amid a lot of buzz about whether the circuit should be split up. If there is a similar cloud surrounding this year’s conference, I haven’t caught on to it. But a lack of press buzz is no barrier to discussing the circuit’s checkered reputation. WSJ.com Law Blog summarizes Judge Bybee’s funny presentation about how the Ninth is viewed through the eyes of various institutions. Update (8/1/08): Judge Bybee isn’t the only judicial joker this week. Tenth Circuit Judge Michael McConnell earned some laughs this week by noting that the Constitution refers to his…
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Why Did the Supreme Court Punt on a Jurisdictional Issue?
Regular readers know I am a jurisdiction geek, and today I get to sink my teeth into a jurisdictional oddity. Well, not a jurisdictional oddity so much as the odd behavior of the Supreme Court with respect to a jurisdictional question. I’ll get to the Supreme Court in a minute. First, a brief rundown on the issue from the case that led me to raise the question in the title to this post. In State of California ex rel Department of Pesticide Regulation v. Pet Food Express Limited, case no. C057156 (3d Dist. July 31, 2008), the court of appeal holds that an order enforcing an administrative subpoena is appealable.…