Today is the last day of operation for The California Supreme Court’s Los Angeles clerk’s office, which is closing for budgetary reasons. The press release announcing the closure states that the Supreme Court will continue to schedule oral arguments in Los Angeles, but litigants must now file all documents at the court’s San Francisco clerk’s office.
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Unlike the Ninth Circuit, this blog is soon to be split in two
And just how, you might be wondering, is a blog with a single blogger going to split up? Since this blog’s inception, I have covered case law and issues in the Ninth Circuit as well as California state court. Based on responses to the blog, however, it appears few people arrive by looking for federal information. Am I missing out on readers — and maybe even business — by having coverage of federal issues buried in a blog called The California Blog of Appeal? Well, I’m going to try to find out. Starting January 1, 2010, your humble blogger is going to be pulling double blog duty, covering case law…
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SCOTUS holds discovery ruling requiring disclosure of privileged information is not appealable
Richard Westfall at Rocky Mountain Appellate Blog wrote up the first SCOTUS opinion authored by Justice Sotomayor, Mohawk Industries, Inc. v. Carpenter, in which the unanimous court (with a separate concurrence from Justice Thomas) holds that a discovery order is not immediately appealable under the “collateral order doctrine.” Westfall summarized the case: In Mohawk, the district court ordered Mohawk to turn over documents Mohawk asserted were protected by the attorney-client privilege. The collateral-order doctrine allows for immediate appeals if: (1) the particular ruling conclusively determines the disputed question; (2) resolves an important issue separate from the merits of the action; and (3) is effectively unreviewable on appeal from a final…
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Google Scholar’s legal database
Image via Wikipedia I’m a little late on this . . . OK, I’m a lot late. Last month, Google announced a searchable database of case law and legal journals on Google Scholar: Starting today, we’re enabling people everywhere to find and read full text legal opinions from U.S. federal and state district, appellate and supreme courts using Google Scholar. You can find these opinions by searching for cases (like Planned Parenthood v. Casey), or by topics (like desegregation) or other queries that you are interested in. For example, go to Google Scholar, click on the “Legal opinions and journals” radio button, and try the query separate but equal. Your…
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Make the record easy on the eyes, please
I was updating my blogroll and checking up on some of those links in preparation for a re-vamp of this site and a new blog project (more about that tomorrow), and I ran across a year-old post at Criminal Appeal I couldn’t agree with more, which starts: Dear Court Reporters, Having finished reading another all-capitalized reporter’s transcript it’s time to again implore you to remember that the proper use of capitalization is not simply a matter of style, but it is more a convention designed to assist the reader and prevent headaches. Capitalization helps the reader find the beginning of the sentence. Lower case letters are easier to discriminate from…
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Lights! Camera! Call your first witness! Ninth Circuit opens up district courts to cameras.
The Judicial Council of the Ninth Circuit issued a press release yesterday (PDF) announcing a pilot program allowing use of cameras in district court courtrooms. The release included this comment from Chief Judge Alex Kozinski: “We hope that being able to see and hear what transpires in the courtroom will lead to a better public understanding of our judicial processes and enhanced confidence in the rule of law. The experiment is designed to help us find the right balance between the public’s right to access to the courts and the parties’ right to a fair and dignified proceeding,” Judge Kozinski said. I’ve heard heavy criticism of the use of cameras…
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Arbitration challenges get a big boost — but maybe not for long
If you’re a litigation or appellate lawyer, you’ve probably already read about Burlage v. Superior Court, case no. B211431 (2d Dist. Oct. 20, 2009 [opinion after rehearing]), and you’re probably not surprised to learn that the petitioners filed their petition for review in the California Supreme Court yesterday. The case had petition for review written all over it: a contentious area of the law (arbitration), a split decision, amicus involvement, lots of attention in the legal community, and heavy-hitter appellate counsel (full disclosure: I know and have worked with one of the attorneys, Ventura appellate ace Wendy Lascher, who represents the Burlages). Other bloggers have reported the case in detail…
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En banc ninth tries to clear up the “abuse of discretion” standard
The “abuse of discretion” standard of review, depending on the particular court applying it and the particular case in which it is applied, can sometimes seem about as clear as mud. The en banc Ninth Circuit set out to clear up the standard in United States v. Hinkson, case no. 05-30303 (9th Cir. Nov. 5, 2009): Today we consider the familiar “abuse of discretion” standard and how it limits our power as an appellate court to substitute our view of the facts, and the application of those facts to law, for that of the district court. *** [W]e conclude that our “abuse of discretion” standard is in need of clarification.…
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Big city justices roll into Napa
The First District Court of Appeal convened yesterday in Napa to hear two criminal cases at a public auditorium before about 400 high school students. The justices also treated the students to a Q&A session. Given that most people’s exposure to the law through the entertainment media nearly always involves a trial, this session strikes me as an excellent opportunity to educate the public about appeals. After all that exposure to movie-version trials, one suspects that the typical student, unless adequately briefed on the proceedings beforehand, would walk away from an appellate hearing saying to himself, “That’s it?” I’m curious whether that sentiment came out during the Q&A or in…
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Well, just the impetus I needed!
If you are a regular reader, you know I’ve been AWOL for several months. What started as a short break turned into a hiatus, without so much as an announcement from me. Work and family issues made for such a hugely busy few months. For the past few weeks, I’ve been considering how to get started blogging again. I’ve been mulling a change in focus of the blog, design changes, perhaps starting another one. Something I could do to rekindle my blogging spirit and herald my return to the keyboard. Then, today I was thinking, “No. Forget about grand announcements. Forget about design changes. Forget about a shift in focus.…
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Supreme Court announces court closure schedule
The California Supreme Court has announced the statewide court closure schedule made necessary, according to the announcement, by “California’s current fiscal crisis.” “The Supreme Court of California, the Courts of Appeal, and all superior courts will be closed on the third Wednesday of each month, starting September 16, 2009”. Those of you who prefer not to risk miscounting your Wednesdays can find a list of closure dates through June 2010 on the Supreme Court’s home page. In case that list is no longer there when you look, Kimberly Kralowek has posted the same chart at The UCL Practitioner.
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Review of Remand Orders: One Man’s Obsession
And I mean obsession in a good way. I never thought I’d get out-geeked on the subject of jurisdiction, and especially not on the subject of appellate jurisdiction, but I think Jones Day partner Mark Herrmann pulled it off today at his Drug & Device Law blog. In a long joint post there regarding when an appellate court may review an order remanding a case back to the state court from which it was removed, Herrmann and his blog partner Jim Beck of Dechert LLP not only chronicle the history of Supreme Court jurisprudence in this area and propose sensible reform, they start their discussion by citing Herrmann’s 22-year-old law review article on the…
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Can your clients help you be more persuasive?
Here’s an article on my short list of must-reads: in Know Your Client: Maximizing Advocacy by Incorporating Client-Centered Principles into Legal Writing Rhetoric Practice, Rutgers-Camden law professor Jason Cohen advocates that lawyers look beyond the typical “write for your audience” mindset and incorporate the client’s values into their legal writing. From the abstract: Clinicians, however, have developed theories of client-centered lawyering which require that the attorney uncover their client’s values, goals and objectives that may go well beyond the discrete litigation at hand. Client-centeredness encourages the attorney to incorporate this information into his/her advocacy on behalf of their client. This article advocates incorporating select principles from client-centered lawyering into legal writing. The…
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A civil case and a criminal case look the same to a mailbox
For an appellant whose mail slot looks like the one pictured, there was an important decision yesterday. The California Supreme Court reached a sensible decision in Silverbrand v. County of Los Angeles, case no. S143929 (Apr. 23, 2009), in which the court holds that a prisoner’s pro se notice of appeal in a civil case is timely filed upon deposit with prison authorities for mailing. This brings the rule for timely filing of an appeal by a pro se prisoner in a civil case in line with the rule for a pro se prisoner’s filing of an appeal in a criminal case. Silverbrand’s medical malpractice action against the county and…
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Service of Summons via Social Media
Sometimes, a defendant manages to dodge service of summons quite skillfully. A colleague of mine once resorted to serving a defendant with summons at the defendant’s daughter’s wedding because the defendant had successfully dodged many prior service attempts. Now, an Australian court has authorized service of summons by notifying the defendant via Facebook (sidebar note at p. 10 of this PDF). And why not? If it hasn’t already happened here, it probably will eventually. California law (Code Civ. Proc., § 415.50) already allows for service of summons by publication in newspapers in certain cases when a plaintiff shows that “the party to be served cannot with reasonable diligence be served in another…
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Judge Bea calls out his colleagues
In a dissent from a Ninth Circuit denial of en banc review in Lopez-Rodriguez v. Holder, case no. 06-70868 (9th Cir. Aug. 7, 2008, r’hng en banc denied March 27, 2009), a case concerning the application of the exclusionary rule to civil deportation proceedings, Judge Bea authors an opinion that puts his view of the panel decision — specifically,the reasoning by which the panel reached its decision — rather bluntly. In [INS v. Lopez-]Mendoza [, 468 U.S. 1032 (1984)], the Supreme Court clearly held the exclusionary rule does not apply to bar illegally procured evidence from admission in a deportation hearing. Mendoza, 468 U.S. at 1050 (holding that the “balance between costs and benefits comes out against…
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Another Supreme Court Justice Meet-Up at Pepperdine
After hosting Justice Alito and Justice Scalia, Pepperdine recently hosted an event with Justice O’Connor. Read appellate attorney Ben Shatz’s account of the Justice O’Connor event at the Los Angeles County Bar Association blog, en banc, where you can also find his previous posts on the Justice Alito and Justice Scalia events.
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Manufacturing appellate jurisdiction over a discovery ruling
When I read Brescia v. Angelin, case no. B204003 (2d Dist. Mar. 17, 2009), I was reminded about how Saturday Night Live once ran one a commercial parody for a product with the advertising slogan “It’s a dessert topping! It’s a floor wax! It’s two products in one!” How do I make that connection? Because when I was done reading the case, I thought, “It’s a dismissal after sustaining a demurrer! It’s a discovery ruling! It’s two rulings in one!” And so did the court of appeal, though it didn’t say it in so many words. Brescia cross-complained against respondents for trade secret misappropriation. Code of Civil Procedure section 2019.210 requires a…
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In re B.S.
I know the title of this post implies that you’re about to read some complaint about an illogical decision. After all, I doubt there’s a litigator alive who hasn’t received an adverse ruling or verdict and thought, “What a load of B.S.!” (By the way, if you ever do feel that way, it’s time to call me.) And that’s the way I was going to write this post, until I looked at the substance of the decision and got hooked, as I usually do, by a jurisdictional question. In re B.S., case no. E045748 (4th Dist. Mar. 17, 2009) is a case of alleged jurisdictional conflict between two divisions of a superior…
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Looks Like I was Wrong about Tweeting Jurors.
I didn’t think we’d see them anytime soon. I was very, very wrong. UPDATE: So I got to thinking . . . I’ve got 20 or 30 years left in my legal career. Will I see a juror’s mental telepathy about a case raised as a ground for appeal? I don’t know, but if mental telepathy is possible, it will sure change oral argument, especially how an advocate handles questions from the court.
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Scalia and Starr at Pepperdine
Too late, you’ve missed it. But if you want to read all about the “conversation” between Dean Kenneth Starr and Justice Antonin Scalia held at Pepperdine yesterday, check out the very detailed write-up of the event by appellate attorney Ben Shatz at En Banc. Consider Ben the Pepperdine bureau chief, as he also had a good write-up last August on Justice Samuel Alito’s appearance there.
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Trial by Tweet
More accurately, I guess, trial coverage by tweet. A reporter as been given permission by a federal judge in Kansas to pubish updates from the courtroom via Twitter. A few of his dispatches by tweet: — “Judge Marten is talking to reluctant witness in chambers with a court reporter transcribing the conversation.” — “The witness who was yelling in the hallway earlier has not returned to the courthouse.” — “Defendants are chatting and laughing among themselves.” — “Exhibits are shown electronically. Every juror has a monitor in the box. There is a monitor at each lawyer’s table and one for the gallery.” It won’t be long before journalism schools offer…
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Your RSS feed reader is not malfunctioning
That’s right, this really is a new post. I didn’t plan to go for more than a month without posting — the longest time I’ve ever had between posts without first announcing a hiatus — but events got the best of me. Which is OK. Between clients and the blog, it’s not a close call. I do plan to get a substantive post up this week and get back on a regular posting schedule soon. Just wanted you all to know the blog has not been abandoned. As a welcome back treat, allow me to share a couple of blawg items I found interestting. First, I just ran across a…
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The “Poof” Principle
I don’t know if they coined the phrase — kudos to whoever did — but “the ‘poof principle” is the phrase the guys at California Attorney Fees use to sum up one aspect of Sanai v. Saltz, case nos. B198217 & B202787 (2d Dist. Jan. 26, 2009). What better phrase to apply to a case where the defendant sees a million dollar attorney fee award evaporate because the underlying judgment is reversed?
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A Published Supersedeas Case. Really!
From my lips to the Court of Appeal’s ears . . . or maybe from my keyboard to the Court of Appeal’s monitors . . . barely a week after I lamented how old most of the published case law is regarding supersedeas and other stays on appeal, along comes Veyna v. Orange County Nursery, Inc., case no. G041305 (4th Dist. Jan. 15, 2009), a published decision denying a petition for writ of supersedeas. Published opinions on this topic rarely come along, so we might as well grab all the gusto we can from it. First, a synopsis of the facts, then a couple of lessons to take away from…
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Supremes Grant Cert in Teen Student Strip Search Case
Remember all the blog coverage (and not just here) about school officials’ strip search of a 13-year-old Arizona student in a “zero-tolerance” motivated quest for that dreaded scourge, Ibuprofen? I covered the original decision upholding the search here, noted the grant of rehearing here, and the en banc reversal here. Here’s the en banc opinion: Redding v. Safford USD #1, case no. 05-15759 (9th Cir. (en banc) July 11, 2008). SCOTUS granted cert Friday afternoon, so there is sure to be another burst of blog coverage about the case. If you want to get up to speed while saving yourself some clicks, go straight to this synopsis by newly minted…
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Can Bad Legal Writing Get You in Trouble?
You bet it can, and your boss isn’t the only one who can create trouble for you. To see what other kinds of trouble you can get into, and how to avoid it, check out this oldie but goodie (but just recently posted to SSRN), Ethical Legal Writing, from UT law professor Wayne Schiess of Legalwriting.net and its blog. The abstract: “This article describes real cases in which lawyers got into trouble for poor legal writing: court sanctions, fines, bar discipline, civil liability, and public humiliation. It offers advice for avoid [sic] those fates.”
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Dominance and Submission at the Appellate Court?
But of course! Not of the leather, whips and chains variety, though. “Dominance and submission” at appellate oral argument is one of the areas taken up by UNLV law professor Michael Higdon in his forthcoming Kansas Law Review article, available now at SSRN: Oral Argument and Impression Management: Harnessing the Power of Nonverbal Persuasion for a Judicial Audience. From the abstract: As you will see in the article, nonverbal communication goes well beyond simple hand gestures, but also encompasses how a person speaks, how a person dresses, a person’s facial expressivity, and even such things as a person’s posture and head position. Furthermore, social science research reveals that both these…
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“There is no exception for Supreme Court cases of ancient vintage.”
That’s from Mehr v. Superior Court (1983) 139 Cal.App.3d 1044, 1049 fn. 3, regarding the doctrine of stare decisis. It’s a handy quote to keep in your arsenal for those occasions when you have to cite very old cases. I can remember legal research and writing instructors pounding into our heads that we should always use newer cases, where available. Thus, while I’ve never seen anyone try to discount a case based on its age alone, there’s that uneasy feeling any time I find it necessary to cite an old case that the adverse party will try to do just that. A smart lawyer, of course, would not rely on…
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Who Says CRC 8.108(f)(1) is for Cross-Appeals Only?
Certainly not Division Three of the Fourth District Court of Appeal. In The Termo Co. v. Luther, case no. G038435 (Dec. 17, 2008), the court holds that the rule of court allowing the 20-day window for “any other party to appeal from the same judgment or order,” triggered by the clerk’s mailing of the notice of the filing of an appeal, means just what it says, notwithstanding its “Cross-appeal” heading. Termo and Angus Development Corporation were co-petitioners in the administrative writ proceedings. The trial court denied the writ. Termo filed its notice of appeal from the judgment on the 59th day following service of notice of entry of judgment —…