Doesn’t anybody read the rules?

When is a brief written by a lay person likely to be of comparable quality to a brief written by lawyer for the other side in the same case? When both briefs stink:

Brooks’s opening brief on appeal includes a statement of facts without any citation to the record. In the argument portion of the brief, references to facts are occasionally, but not consistently, supported by citations to the record. ECG’s respondent’s brief, which relies extensively upon facts developed at trial, does not include a single citation to the record. The failure to include citations to the record violates rule 8.204(a)(1)(C) of the California Rules of Court: Briefs must “[s]upport any reference to a matter in the record by a citation to the volume and page number of the record where the matter appears.” Although these failures subject the briefs to being stricken, we have elected to disregard the noncompliance. (Cal. Rules of Court, rule 8.204(e)(2)(C).)

(In re Marriage of Brooks and Robinson (2008) 169 Cal.App.4th 176, 180 fn. 1.) Maybe stink is a strong word. It’s possible the briefs made excellent points and were terrible only in their failure to comply with the rule requiring citations to the record. But still . . . the odds that neither side would comply with such a basic rule strike me as being quite low. Here, one of the parties (Brooks) was self-represented, but I’m betting that somewhere out there are cases with lawyers on both sides of the appeal filing non-conforming briefs.

This sounds like the beginning of a pitch urging you to employ an appellate attorney, doesn’t it?

You know what I do when I have a question about procedure? This is a really radical concept for some . . . I look up the applicable rule. You don’t have to be a rocket scientist — or even an appellate lawyer — to realize that’s a good idea.

A different kind of “three strikes and you’re out”

A recent opinion from the court of appeal demonstrates that while redundancy is usually something to be avoided, sometimes it’s a good way to make a point.

[Plaintiff] persistently misstates the central issue in the case by insisting, here and in related appeals, that the question presented is whether a defendant charged with trade secret misappropriation “may escape liability” by establishing that it “does not comprehend the specific information comprising the trade secrets.” This is not an issue, let alone the chief issue, in these matters. The posited question may be answered in the negative-as indeed it must-without resolving any aspect of this case. It is a smokescreen, a red herring, a straw man.

That’s three strikes. Or, really, all the same strike, stated three ways. This is another example of judges being able to get away with clever or sarcastic writing that most lawyers should probably avoid. Judges can get even more colorful. Yet, a lawyer takes a big chance in doing so, especially (in my view) in the court of appeal. So unfair!

Real legal research on your iPhone

If you are an iPhone-using lawyer, you really should subscribe to the iPhoneJD blog, where New Orleans attorney Jeff Richardson keeps you updated not only on specific legal uses for the iPhone, but on all things iPhone.

Yesterday, he reviewed Fastcase, an iPhone app for legal research, and the opening paragraph could hardly have been more glowing:

I will start this review with what probably belongs in my conclusion:  Every single lawyer using an iPhone should download the Fastcase app.  Moreover, the availability of the free Fastcase app is a compelling reason for any attorney not using an iPhone to purchase one today.  This app is that useful.

The rest of his review is very thorough.

The application itself is free, but the two subscription plans offered have an annual cost of  $700 and $1000. While that’s a heck of a lot less expensive than commercial services like Westlaw and Lexis, Fastcase will hardly replace either. It will be most useful for quick lookups on the go.

A lucky few won’t have to conduct any cost-benefit analysis. Seventeen bar associations (so far) offer Fastcase to their members free. That includes several statewide bar associations. Unfortunately, California is not among them, but a couple of Ninth Circuit states are: Arizona, Nevada and Oregon.

UPDATE (2/2/10): On second thought, this application might be good for a lot more than just the occasional quick lookup. On an iPad, it will be a lot more readable. Hmmm, up until know, I was pretty sure I wasn’t going to buy an iPad.

(Cross-posted at The Ninth Circuit Blog of Appeals.)

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The “underground body of law” – the influence of unpublished opinions

There’s nothing quite so frustrating as finding the perfect case — factually and legally on “all fours” with yours, with a “slam dunk” holding — that has been depublished (or was never published). California Rules of Court, rule 8.1115(a), prohibits citation to opinions “not certified for publication or ordered published.” That “perfect” case might as well not exist if it’s not published.

Well, not quite. Such cases can be well worth finding because, in the absence of published cases, they can still be quite helpful in formulating argument and working logically through the issues. It is such influence in the absence of publication that leads presiding justice Kline, dissenting in People v. Moret, case no. A123591 (1st Dist. Dec. 28, 2009. modified on denial of rehearing Jan. 22, 2010), to cite the existence of an “underground body of law” as his principle justification for publication of Moret:

[Health and Safety Code section 11362.795] has, however, been interpreted and applied in a significant number of unpublished and therefore noncitable opinions. (Cal. Rules of Court, rule 8.1115.) Because published opinions construing the statute do not exist, and the unpublished opinions that do are easily obtained by interested lawyers and judges, the unpublished opinions may influence the strategy of counsel and the decisions of trial and perhaps even appellate courts. The existence for a long period of time of an underground body of law on the meaning of [Health and Safety Code] section 11362.795 (to which some members of this panel have admittedly contributed) is injudicious.

The cited code section concerns use of medical marijuana. I can’t be the only one who finds it a little ironic that the body of case law on it would be underground.

Supreme Court denies review in Burlage v. Superior Court

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The Supreme Court denied review today in Burlage v. Superior Court, leaving intact the decision that, by speculation of some (including yours truly), will increase the number of legal challenges to arbitration decisions. I won’t go so far as to say that it will “open the floodgates,” but it certainly opens an avenue to judicial review that many would not have tried before the decision was published.

Expect to see many challenges that assert, though not in so many words, that the legal error that occurred in their case is grounds for vacating an award if the error led the arbitrator to exclude evidence. The challenge for these litigants will be to squeeze the history of their arbitration proceedings into the confines of Burlage, and its interpretation of Code of Civil Procedure section 1286.2, subdivision (a)(5). There will be plenty of fights over what those confines are.

The section headed “Uncertainty and a Little History” at the outset of Justice Gilbert’s opinion in Burlage certainly seemed to tee the case up for Supreme Court review:

We look to legal precedent in deciding cases. We believe the law is predictable and provides litigants and counsel a reasonable degree of certainty. True, but not always.

In 1991, we wrote what we thought was a routine arbitration opinion. (Moncharsh v. Heily & Blase (Apr. 2, 1991, B048936) [nonpub. opn.].) We relied on decades of precedent in our unpublished decision to affirm the arbitration award because no error appeared on the face of the award. In dicta, we noted that had the error appeared on the face of the award and created substantial prejudice, we would have reversed.

To our surprise, our Supreme Court granted review. Our holding was affirmed, but our dicta “reversed.” (Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1.) Oh well, nobody’s perfect. Moncharsh held that judicial review of an arbitrator’s decision regarding questions of fact or law is extremely limited. Thus, even though an error of law appears on the face of an arbitration award and causes substantial injustice, it is not subject to judicial review in the absence of a limiting clause or as provided by statute. (Id. at p. 25.)

For the next decade, courts have wrestled with the question of when and under what circumstances judicial review of an arbitration award is proper.

Though we have no Supreme Court review this time, we’re about to witness another round of wrestling. As more and more courts consider the question, significant judicial discord may develop, and Justices Baxter and Corrigan — the two justices who were in favor of review — might sway their colleagues to grant review in a similar case.

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Judicial Council meeting this week to discuss impact of court closures

A Friday afternoon press release (PDF) from the Administrative Office of the Courts announced that this Wednesday’s meeting of the Judicial Council will include a review of  the impact of the court closure policy instituted last September. From the agenda:

Based on survey responses from the Supreme Court, Courts of Appeal, 54 superior courts, and 275 justice system partners, the Administrative Office of the Courts (AOC) recommends continuing the one-day-per-month judicial branch closures through June 2010, as directed at the July 29, 2009, Judicial Council meeting. The closures provide a viable method in the short term to absorb the significant budget reductions imposed on the branch, although they are far from a perfect tool and have unquestionably affected court operations and the smooth and effective delivery of justice. The AOC further recommends that the council reaffirm its commitment to keep courts open and accessible to the public and to advocate for sufficient resources to avoid the need for court closures in fiscal year 2010–2011 and direct the Administrative Director of the Courts, in consultation with branch leaders to develop recommendations and guidelines for limited closures for 2010– 2011 should sufficient resources not be provided.

The agenda references this 28-page report (PDF) from the AOC. The meeting will be audiocast live at this link.

Citations of the future

Duke University professor Joan A. Magat has an article up at SSRN suggesting changes in footnote use in academic legal writing, but the future she predicts for legal journals in “Bottom Heavy: Legal Footnotes” may be the future of all legal authority:

No more paper: just electronic journals with links to sources. That’s what’s ahead. All this current, Bluebook-inspired preoccupation with small caps and spacing initials and the like will go the way of the mastodon. One of these days, we’ll have just URLs. They’ll have to be correct, or they won’t work. And they’ll have to last.

If you’re an academic writer, you should check out the article. Here’s the abstract at SSRN, where you can access the complete article after signing up for a free account:

For decades, legal footnotes have been the deserving target of both ample criticism and self-mockery. Apart from their complaints as to footnotes’ mere existence, most critics draw a bead on the ballooning of footnote content. Some journal editors, aspiring to respond to this sound theme, hopefully inform their authors of a preference for “light footnoting.” But where does an author begin to trim, and what editor has the audacity to slash what the author (or her research assistant) has so laboriously compiled below the line? Changing our footnote habits is about benefits and costs. To gain the former, we must ante up. If criticism began the round of bidding, this article modestly raises the stakes, suggesting a rule of reason that might govern the author’s, the editor’s, and the reader’s expectations for footnotes. A gamble, perhaps, but one that might be worth taking.

Ineffective assistance of counsel in advising waiver of right to claim ineffective assistance of counsel

When a plea agreement includes a waiver of rights to appeal, claim ineffective assistance of counsel, and to move to withdraw the plea, can it logically be enforced to preclude a claim of ineffective assistance of counsel in the advice to enter into the agreement? Last week, in People v. Orozco, case no. F056712, (5th Dist. Ja. 8, 2010), the court of appeal joins several federal courts in reaching the only sensible answer: of course not.

To hold such a waiver enforceable “would deprive a defendant of the ‘opportunity to assert his Sixth Amendment right to counsel where he had accepted the waiver in reliance on delinquent representation.’ ” [Citation.]

We agree with the federal authorities and find justice dictates that a claim of ineffective assistance of counsel in connection with the making of the waiver agreement cannot be barred by the agreement that is the product of the alleged ineffectiveness.

“Octa-Mom” wins one in court

“Octa-mom” Nadya Suleman became an object of derision when, after fertility-treatment-induced birth to octuplets, people learned she was a cash-strapped single mother who already had six children at home. But it’s her adversary that comes into ridicule in Friday’s decision in Suleman v. Superior Court , case no. G042509 (4th Dist. Jan. 8, 2010).

Paul Peterson filed a petition to appoint a guardian to handle financial affairs for the octuplets. (Peterson asserted that his non-profit organization wanted to ensure that financial compensation received from photos or video of the octuplets was preserved for their majority, which explains why no guardianship was sought for the remaining children.) Suleman moved to dismiss, and petitioned for a writ of mandate after the trial court denied her motion. As unsympathetic a person as Suleman may have been in the press, Peterson looks pretty bad, too:

This is an unprecedented, meritless effort by a stranger to a family to seek appointment of a guardian of the estates of the minor children. The petition‟s allegations are insufficient to infringe on a parent‟s civil rights or to rebut the presumption under California law that a parent is competent to manage the finances of his or her children. There is nothing in the petition that shows that the best interests of the children in the management of their finances are not being served by Suleman.

I always liked the joke “It’s on the internet, so it must be true!” Peterson learns that a court petition is not the time to try to take that whimsical expression seriously:

What information do we have before us? Petersen is not a relative under section 1510, subdivision (a). Petersen has never met and never had any contact with Suleman, her children, or any member of her family. All of the information presented in the petition for appointment of a guardian has come from television or the Internet. Petersen has provided no documentary evidence (much less admissible evidence) that raises a reasonable inference of wrongdoing. The information provided can be summed up as follows: Suleman and her children have appeared on television and the Internet, presumably in exchange for money. No evidence of financial mismanagement on the part of Suleman is offered. Petersen admits he does not know whether Suleman has taken the appropriate steps to ensure that 15 percent of each child‟s portion of any earnings has been placed into a [statutorily mandated] Coogan Trust Account.

(My emphasis, footnote omitted.) Not only does Suleman get the guardianship petition dismissed, she also succeeds in stopping an investigation ordered by the trial court into her family’s finances.

The average person following this on the news probably wrote off Suleman’s chances of prevailing. Lawyers not paying close attention may also have rolled their eyes, in light of the overwhelming odds against having a writ petition heard on the merits, let alone winning. However, Suleman presented a statutory interpretation issue of first impression of great importance — who has standing as “another person on behalf of the minor” under Probate Code section 1510, subdivision (a) to bring a guardianship petition — that not only caught the court’s eye, but actually resulted in a win.

New, and hopefully improved, design

Regular readers will note the blog’s new design, which debuts today. When I started my new blog, The Ninth Circuit Blog of Appeals, I utilized a customizable theme that emphasizes search engine optimization. I’ve switched over to the same theme here for the SEO benefits and in order to make the designs of the two blogs similar enough to suggest a relationship.

I still have lots of touch-up work to do, but I decided it was better to reopen the blog to access today as scheduled rather than spend another day or two tinkering without substantive updates. So, please bear with me as I clean up around here over the coming weeks.

Don’t jump to conclusions on the standard of review

“This is one of those cases where some exposition on the topic of the standard of review is necessary to sort out the case.” When a court begins its analysis with that sentence, as the court in Le v. Pham, case no. G041473 (4th Dist. Jan. 6, 2010) did yesterday, you know the opinion is going to be an interesting read — if you’re an appellate attorney, anyway.

Le is a great study in why it is important to think carefully about the appropriate standard of review. Respondents, who had prevailed against a cross-complaint against them, probably thought they had this case in the bag, but because the standard of review was not what they thought it was, judgment on the cross-complaint was reversed.

The Les, a married couple, together owned 50% of the stock in a pharmacy corporation; Pham owned the other 50%. The bylaws obligated the Les to give notice of any proposed sale of their shares to a third party and gave Pham a right of first refusal, but failed to specify a time in which to exercise it. The bylaws also dictated that any sale below the price in the notice was void.

The Les sold their shares to third parties, the Hoangs. Pham, contending the sale was in violation of her right of first refusal and was void because the sale price was below that provided in the Les’ notice, refused to recognize Paul Hoang as a shareholder and would not grant him access to the corporate records or seat him as a director. Paul Hoang did not file a change of ownership form with the California Board of Pharmacy. As a result, the board closed the pharmacy for approximately three month starting in March 2007 and kept it on probation through the end of that year.

The Les and Hoangs sued Pham, contending the sale was valid and Pham’s refusal to give them access to the corporate records was wrongful, that Pham had failed to file proper forms with the state, and that she had converted corporate funds to her own use. Pham cross-claimed, alleging breach of fiduciary duty against the Les and fraud against Paul Haong (based on holding himself out as a shareholder). The complaint and cross-complaint were both alleged derivatively on behalf of the corporation as well.

The case was tried to the court, and the court of appeal summarized the result thus:

After a bench trial, Pham prevailed on the Les’ and Hoangs’ complaint, while the Les and Hoangs prevailed on Pham’s cross-complaint. That is, the court, in its statement of decision, ruled that the Les’ attempted transfer of shares to the Hoangs was null and void because it did not comply with the corporate bylaws. It was obvious, after all, that the Les had attempted to sell the shares to the Hoangs for a better price ($24,000 as distinct from $70,000) and on better terms (installments rather than cash) than had been offered Pham in the notice of intent to sell.

As to Pham’s (and the corporation’s) cross-complaint against the Les for breach of fiduciary duty, the statement of decision concluded that they had “failed to carry their burden of proof.” The trial judge wrote: “Generally speaking, at trial, little evidence was adduced in support of the cross-complaint.” She also wrote, however, that Pham “did not have an adequate opportunity to exercise her right of first refusal” given that Dieu-Hoa Le had “unilaterally demanded that the written offer be made within 10 days.”

Read that carefully. That those facts are undisputed is important.

It’s tough to summarize the point regarding the standard of review any more concisely than the court has already done, so I’ll simply provide the following (and quite long) excerpt. As you read it, I think the lesson will become clear: don’t jump to conclusions on the standard of review.

The obvious starting point is that, since Pham and the corporation are challenging a judgment after a court trial, they initially face the formidable substantial evidence standard of review.

The substantial evidence standard has two components, and both work generally against appellants: First, all conflicts in the evidence must be resolved in favor of the prevailing party; second, all reasonable inferences from the evidence (all conflicts already having been properly resolved) must be drawn in favor of the prevailing party. (See Eisenberg, et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group (2009) ¶¶ 8:38, 8:60, pp. 8-18, 8-8-26.)

We should note, then, that Pham and the corporation are necessarily in the position of saying that the evidence, despite all the resolution of conflicts and having all reasonable inferences drawn against them, nevertheless compels a judgment in their favor, on the two issues they have raised in this appeal: The Les’ fiduciary duty and Paul Hoang’s alleged fraud. Not surprisingly, the brief filed on behalf of the Les and Hoang lavishes attention on the substantial evidence rule. The Les and Hoang are most certainly correct that if we find any substantial evidence obviating either (a) any fraud on Hoang’s part or (b) the existence of a fiduciary duty, or the subsequent breach of a fiduciary duty if there is one, we must affirm the judgment.

However, if one digs a little deeper — for example, by continuing to read the remainder of the respondent’s brief — it turns out that the substantial evidence rule is actually irrelevant in the context of the issue of whether the Les’ owed a fiduciary duty as shareholders to Pham, and whether any such duty was breached. There is no conflict as to the facts of ownership of the corporation: 50-50. There is no conflict in the evidence regarding the sale (or, better, attempted sale) of the Les’ half of the corporation to the Hoangs. And there is no conflict in the evidence as regards the consequences of that attempted sale, namely a cease and desist order from the California State Board of Pharmacy closing the business for about three months beginning in March 2007.

Thus, the Les’ actual argument on the fiduciary duty issue presented in their brief turns out not to be a factual one at all (e.g., the Les don’t say: “there was evidence that we didn’t really own any shares at all, or that we offered our shares to Pham at the same price and terms as we offered to the Hoangs”), but a legal one: The Les assert that by virtue of the undisputed fact that they were 50-percent shareholders in the corporation — that is, were not majority stockholders — they had no fiduciary duties to the corporation or to the other 50-percent shareholder. Of course, when the facts are undisputed and the question on appeal is wholly a legal issue, the proper standard of review is independent review. (E.g., People v. Superior Court (2007) 41 Cal.4th 1, 7 (Decker) [because dismissal of attempted murder charges “was based on undisputed facts,” it constituted “a legal conclusion subject to independent review on appeal”].)The trial court‟s comments in its statement of decision, then, that (1) “at trial, little evidence was adduced in support of the cross-complaint” and (2) Pham and the corporation had “failed to carry their burden of proof,” while understandable, miss the mark in analyzing the problem of whether the Les had a fiduciary duty toward Pham as regards the bylaws‟ right-of-first-refusal provision.

The comments were quite understandable if one thinks about how the trial judge experienced the unfolding of the trial. Precisely because the relevant facts involving the attempted sale were undisputed, most of them were presented in the context of the plaintiffs’ (the Les and Hoang) case in chief seeking to validate the sale from the Les to Hoang. The trial was ninety percent over, in terms of counting pages in the reporter’s transcript, when the Les and Hoang rested their case. That case in chief included, for example, calling Pham herself as an hostile witness, and the only witness that Pham and the corporation called after the plaintiffs had rested was the state Board of Pharmacy inspector, who explained why the corporation had had to close down for about three months in 2007. So we can understand that it might not have seemed like Pham and the corporation were producing much evidence on their cross-complaint at trial. Most of the relevant (and undisputed) facts bearing on the legal question of whether the Les had a fiduciary duty and, if so, violated it, had been brought out in the plaintiffs’ case in chief. But just because the undisputed evidence favoring the cross-complaint also happened to come out on the plaintiffs’ case in chief does not mean it was not available to support the cross-complaint.

I don’t find anything surprising about the court’s analysis. But I’m not so ready to call the trial judge’s comments “understandable if one thinks about  the way the trial judge experienced the unfolding of the trial.” Were there no closing arguments or briefs? What about input from the parties regarding the statement of decision? (See Code of Civil Procedure section 632.)

The uncontradicted nature of the evidence seems pretty clear to me. Then again, hindsight is 20/20, isn’t it?

Now in session: The Ninth Circuit Blog of Appeals!

The Ninth Circuit

Just before Christmas, I announced that this blog would be spinning off a new blog, The Ninth Circuit Blog of Appeals, with the start of the new year. I’m pleased to announce that The Ninth Circuit Blog of Appeals is now in session. This is the follow-up post I promised about how I reached the decision to split this blog and my plans for managing both of them.

First, an explanation as to why I am resuming blogging on a more regular basis. As regular readers recall, my blogging frequency dropped off dramatically in 2009. I posted from time to time, but not with the regularity and enthusiasm with which

I started this blog in spring of 2007. (Then again, I’m not sure any solo blogger could have kept up that pace for long.)

A funny thing happened while I was away from this blog.

Traffic doubled. People called and hired me after finding me through the blog. And, while I was worried that the drop off in my blogging would eventually catch up to me, and that I would be passed by other California appellate bloggers, it turns out many of them — the practicing attorneys, anyway — blogged even less than I did!

Now, all of that might suggest the whimsical view that infrequent blogging is the key to success! But I don’t look at it that way. I see the past year as evidence that renewed and consistent blogging will bring even more traffic and help reestablish my blogging niche. That way, I won’t be embarrassed at the state of the blog the next time I get mentioned at Lexblog.

Why spin off The Ninth Circuit Blog of Appeals?

There was one thing that was missing, or at least very infrequent, about the traffic generated by this blog: inquiries about

Ninth Circuit appeals. Virtually all my inquiries were about California state court appeals. When I did get an out-of-state inquiry, it was often for an appeal in some state court where I am not admitted to practice, or an appeal in another federal circuit.

That made me think that federal subject matter posted on this blog is hidden from the typical internet researcher. Who is going to look for information about federal appeals on a blog called The Calfornia Blog of Appeal, even if it shows up in their search results?

The new blog is an effort to reach those readers. It seems to me that someone with a federal case in Arizona who turns up a result on The Ninth Circuit Blog of Appeals is far more likely to look at it than at the identical content on The California Blog of Appeal, especially if that someone is a lawyer familiar with the terminology. (A fair number of my inquiries come from lawyers rather than their clients.) But even a party with little knowledge of the court system is likely to have learned from his trial lawyer that his appeal is to the Ninth Circuit.

I’ve taken steps (amateur ones) to “SEO” the new blog. That’s “search engine optimization” for you non-techies. And its designed to draw ninth circuit traffic like flies. I hope.

What should regular readers expect here?

The state-federal division between the blogs isn’t as simple as it sounds. You lawyers out there can think of it as the Erie

doctrine for blogs. The question I face is similar to that faced by the Erie court both in the nature of the split and the difficulty of answering the question: when does a post belong on the state court blog The California Blog of Appeal and when does it belong on the federal court blog The Ninth Circuit Blog of Appeals?

Well, the easy answer is that posts about federal cases go on  The Ninth Circuit Blog of Appeals and those about California state court cases go on The California Blog of Appeal. The problem is, that is the easy answer, not necessarily a good one. Too many posts transcend jurisdiction.

For starters, what about cases that affect the law in both court systems? For example, a case where the Ninth Circuit certifies a question to the California Supreme Court? Or a United States Supreme Court case regarding constitutional criminal procedure that governs all criminal cases, state or federal?

In addition, I’ve blogged about many things besides developing case law. Legal humor, legal technology, legal education , and even law practice and marketing are occasional topics here. I blog about legal writing and legal research quite a bit. I even blog about blogging and note the occasional oddity.

So, I’ve been pondering for several weeks how to divide these seemingly transcendant posts between the blogs, and I’ve come up with a hard and fast rule: I’m going to wing it. But I’m going to wing it with an eye towards taking care of my regular readers. I may cross-post some posts at both blogs. I may write a summary on one blog that links to the full post on the other. I ma

y try to put a slightly different spin on the same post at the respective blogs. The lighter and more personal posts are likely to be posted here. Until I establish some kind of rhythm, my principle concern will be not to make the transition too jarring for my regular visitors. My apologies in advance for any inconvenience.

There is, however, one way to make sure you don’t miss anything. Subscribe to both RSS feeds! (State and Federal.)

So, go read my introductory post at The Ninth Circuit Blog of Appeals, poke around a bit, and feel free to offer any suggestions for improvement.

Finally, within the next week or so I will be converting The California Blog of Appeal to a new theme that complements the theme at The Ninth Circuit Blog of Appeals and will allow me to implement better search engine optimization. My target date for the new theme is Monday, January 11.  You may find this blog down occasionally until you see it with the new theme

.

Felony-misdemeanor preemption analysis yields odd result

Most of the time, lawyers encounter preemption issues in the context of conflicts between federal and state law or between local and state law.  But horizontal preemption is also possible. Even different criminal statutes in the same state can trigger preemption issues, as in People v. Murphy, case no. E046742 ( 4th Dist. Dec. 28, 2009):

Defendant contends the Legislature enacted misdemeanor statutes, which more specifically defined the felony offense for which she was convicted in count 1, subsequent to the latter’s enactment; thus, she asserts her felony conviction is preempted and must be reversed.

Specifically, the defendant contended that her conviction for procuring or offering false information for filing in a pubic office (Pen. Code, § 115, subd. (a)), with which she was charged for submitting a false stolen vehicle report to the California Highway Patrol, was preempted by Vehicle Code section 20 (false statement or knowing concealment of any material fact in any document filed with the Department of Motor Vehicles or the Department of the California Highway Patrol) and Vehicle Code section 10501 (filing of false or fraudulent report of theft of a vehicle with any law enforcement agency with intent to deceive). At first glance, it looks like a pretty good argument, but it doesn’t withstand the preemption test.

“The preemption doctrine provides that a prosecution under a general criminal statute with a greater punishment is prohibited if the Legislature enacted a specific statute covering the same conduct and intended that the specific statute would apply exclusively to the charged conduct. [Citations.] To determine the applicability of this doctrine in a particular case, the courts have developed two alternative tests. Under these tests, a prosecution under the general statute is prohibited if: (1) “each element of the general statute corresponds to an element on the face of the [specific] statute‟; or (2) “it appears from the statutory context that a violation of the [specific] statute will necessarily or commonly result in a violation of the general statute.‟ [Citations.]” (People v. Jones (2003) 108 Cal.App.4th 455, 463.)

“Consideration must be given to the entire context surrounding the “special‟ statute to determine the true overlap of the statutes and to ascertain the intent of the Legislature.” (People v. Jenkins (1980) 28 Cal.3d 494, 503.) “The fact that the Legislature has enacted a specific statute covering much the same ground as a more general law is a powerful indication that the Legislature intended the specific provision alone to apply. Indeed, in most instances, an overlap of provisions is determinative of the issue of legislative intent and „requires us to give effect to the special provision alone in the face of the dual applicability of the general provision . . . and the special provision. . . .‟ [Citation.]” (Id. at pp. 505-506.)

What’s interesting about the court’s reasoning in concluding that the Penal Code provision is not preempted is that the elements that differentiate the Vehicle Code misdemeanor provisions from the Penal Code felony provision (and thus prevent preemption) arguably make the misdemeanors harder to prove and more serious than the felony offense. Both of the Vehicle Code provisions require filing a document, whereas the Penal Code provision only requires that the defendant “procure” or “offer” it. The nature of the falsehood in the misdemeanor statutes also seems more serious and harder to prove than the falsehood in the Penal Code provision. Vehicle Code section 20 requires the false statement to be material, and Vehicle Code section 10501 requires that the false statement be made with intent to deceive; yet, neither materiality nor intent to deceive is an element of Penal Code section 115, subdivision (a).

The answer to this curious state of affairs appears to be the in the court’s exlpanation of the purpose of Penal Code section 115:

As the People note, Vehicle Code section 10501’s lack of a requirement that the false report, if genuine, could have been legally filed provides a legally decisive distinction reflecting the Legislature‟s intent, pursuant to Penal Code section 115, to protect recordation of documents in public institutions and the public’s reliance upon them, a concern not apparent in Vehicle Code section 10501. Additionally, as noted above in the discussion of Vehicle Code section 20, Penal Code section 115’s prohibition on knowingly procuring or offering false instruments to be filed is legally distinct from Vehicle Code section 10501’s prohibition on making false statements or actually filing a false report of vehicle theft. This is because an offense under Penal Code section 115 is more egregious because it inherently induces the conduct and reliance of others in its commission.

***

Similarly, a violation of Vehicle Code section 10501 will not necessarily, or even commonly, result in a violation of Penal Code section 115 because the former is concerned with the filing of the false or fraudulent report by the reporter himself or herself; thus, it lacks the more morally turpitudinous act of inducing behavior by another.

The court seems to be saying that the purpose of Penal Code section 115 — to prevent reliance by the public on falsified instruments — is served by imposing criminal liability just for getting a false document even close to filing, regardless of intent. In other words, people need to be darn careful about what they offer for filing to public agencies.

I get that, in the abstract. And, I agree that the technical test for preemption is not met in the case. It seems odd, however, that the practical result of applying the preemption test should lead to this result. The fact of the matter is that the defendant filed a false report of vehicle theft with the highway patrol, which the legislature deemed less punishable than the conduct proscribed by the more general felony statute. What purpose does Vehicle Code section 10501 serve if not to make less culpable those persons who file a particular false document that is not likely to be relied upon by the public?

When the Attorney General agrees with you

Respondents sometimes must concede minor points along the way while arguing that such points do not require reversal. But seldom does one see the respondent agree that a judgment is even partially reversible.

One is more likely to see it in a criminal appeal than in a civil appeal, especially when the criminal appeal involves errors in sentencing, as in People v. Frausto, case no. B212054 (2d Dist. Dec. 28, 2009), where the attorney general agreed that the trial court erred in imposing three cumulative 5-year sentencing enhancements under Penal Code section 667, subdivision (a)(1) for each of three prior serious felony convictions tried in a single proceeding and that the defendant had been awarded only 464 of the 466 days of presentence custody credits to which he was entitled. (Not that it did the defendant much good. The 2 extra days of presentence custody credits — 2 days — were applied against  a sentence of 214 years to life. Since the three 5-year enhancements were added consecutively to that sentence, the 10-year reduction in enhancements was likewise not much comfort to the defendant.)

The first (and, so far, only) time I got a brief from the attorney general agreeing with my position, I was stunned. I noticed it when I skimmed through the headings of the respondent’s brief, and thought to myself, “Must be a typo. They left out the word ‘not.'” Even when I read the argument under the heading, I had to read it three times just to make sure that I was reading it correctly!

Reminder: Supreme Court’s Los Angeles office closes for good today

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.

Unlike the Ninth Circuit, this blog is soon to be split in two

Teenage boy chopping wood

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 and issues from California state court here and covering case law and federal issues in the Ninth Circuit at The Ninth Circuit Blog of Appeals. The new blog is still under construction, but if you care to bookmark it prior to the grand opening, click here.

I’ll have a lot more to say on January 1 about how I reached the decision to split the blog, how I intend to avoid duplicate posts on both blogs on subjects applicable to both (legal writing, e.g.), and how I intend to minimize inconvenience for my regular readers who wish to follow both blogs.

UPDATE (12/29/09): The split may be delayed until January 4. I’m running into technical difficulties with the design of the new blog. Nobody is going to be reading law blogs on New Year’s Day anyway . . . are they?

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 judgment. Some circuits allow for immediate appeals under the collateral-order doctrine to review whether an order violates the attorney-client privilege. The Supreme Court held in Mohawk that orders requiring disclosure of arguably privileged material will have to wait for a final judgment because they are reviewable after judgment, however imperfectly. Justice Sotomayor noted that parties in such situations can defy disclosure orders and suffer sanctions, which will then be reviewable, or subject themselves to contempt of court, thereby also obtaining review.

Westfall urges the Colorado state courts not to adopt the rule, to which I say . . . be glad you don’t practice in California, Steve! In California state courts, discovery rulings are generally not appealable, even where the disclosure of privileged information would result. In such a situation, the party seeking review must do so by petitioning for a discretionary writ, and hope that the issue presented and the gravity of the disclosure are enough for the court of appeal to exercise its discretion to hear the petition on the merits.

Mohawk Industries resolves a circuit split in which the Ninth Circuit was in the minority camp that allowed appeal from such rulings. (In re Napster, Inc. Litigation (9th Cir. 2007) 479 F.3d 1978.) I’ll have more on the federal angle in an update.

Google Scholar’s legal database

Google Scholar
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 search results will include links to cases familiar to many of us in the U.S. such as Plessy v. Ferguson and Brown v. Board of Education, which explore the acceptablity [sic] of “separate but equal” facilities for citizens at two different points in the history of the U.S. But your results will also include opinions from cases that you might be less familiar with, but which have played an important role.

I haven’t had time to test it out thoroughly, but in just a few minutes I was able to find my way around pretty well, and there appear to be quite a few search options. Looking up a case by its citation is much like the paid services: just type the citation in the search box at Google Scholar. There are options on the advanced search page to limit searches by subject matter, to search only federal cases, and to search any mix of individual states. Law journals can be searched by author, journal, date range, and any combination thereof. (Don’t worry if you don’t have the citation format for the law journal handy; identifying it by full name appears to work just fine.) Google provides a page of advanced search tips.

Cases cited in documents are linked for ready access with a click, just like the paid services. Of course, authorities not archived in Google Scholar are not linked, and the cases do not have the headnotes that appear in Westlaw or Lexis cases, and the date range of cases available so far is limited. For details, check out the “About” page for Google Scholar and follow the links in the left margin.

Unlike the free searching on Findlaw, one need not create an account to use the service. That’s nice.

Overall, this is a worthwhile resource, and perhaps especially for law bloggers who want to provide links to case law that won’t expire (like those on the California court websites do) and are is accessible to all readers. I’m going to take a serious look at using it for links on this blog.

UPDATE (12/21/09): I had time to play around with this a little more and wanted to alert readers that while the Google Scholar site does not require any form of membership, getting full access to journal articles in the results may require you to open an account at the site actually hosting the article, such as SSRN (which is free). However, I did run across an article hosted elsewhere that required payment for full access.

UPDATE (12/23/09): Legal Writing Prof Blog notes a discrepancy to watch for between Google Scholar results and the official reporters, and gives the common sense advice “If you’re going to cite to legal authorities found through Google Scholar, make sure you check your results against the official (or commercial) version, as applicable, to ensure accuracy.”

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Make the record easy on the eyes, please

UN StenographerI 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 each other.

Style and ease of reading aside, you’d think the ALL CAPS convention might have been abandoned after it was adopted in the early internet days for use in plain text emails and online bulletin boards and chat rooms as a way of SHOUTING IN WRITING ONLINE. Once people got rich text format email ability (allowing for underlined, bold, and italicized type), the ALL CAPS SHOUTING ONLINE convention may have abated somewhat, but I’m still reminded of it whenever I read an ALL CAPS trial transcript.

I say we leave the ALL CAPS convention for deposition transcripts, where most of the shouting really happens!

Lights! Camera! Call your first witness! Ninth Circuit opens up district courts to cameras.

Clapper Board

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 in court.  Many criticized the gavel-to-gavel coverage on the O.J. Simpson case because they believed it caused the attorneys (and even the judge) to grandstand, and some felt that it contributed to Judge Ito “losing control” of his courtroom. Assuming the validity of those criticisms, I don’t think one need worry that those problems will be replicated in the federal district courts. Federal judges are hardly known for allowing attorneys to get away with misconduct.

And the question everyone is asking in the wake of this announcement: will the Proposition 8 trial be televised? Here’s the only clue given by the press release:

Cases to be considered for the pilot program will be selected by the chief judge of the district court in consultation with the chief circuit judge. The participating district courts will be asked to evaluate their experiences and report to the Council.

I wonder what “consultation” means in this instance. At one extreme the chief circuit judge would have veto power. At the other, the chief circuit judge would merely advise and leave the final decision to the chief district judge. If I can find more detail about this, I’ll post it.

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 (links later in this post), so before I get to the point of this post, I’ll just give a brief recap.

The Burlages prevailed in arbitration and were awarded damages. Respondent contended that her evidence regarding damages was improperly excluded, and moved to vacate the award based on Code of Civil Procedure section 1286.2, subdivision (a)(5), which requires a trial court to vacate an arbitration award if “[t]he rights of the party were substantially prejudiced by . . . the refusal of the arbitrators to hear evidence material to the controversy.” The trial court vacated the award.

Seems rather straightforward, until you consider why the arbitrator excluded the evidence: it was irrelevant to the measure of damages the arbitrator applied. Respondent contended the measure of damages was improper, and that the excluded evidence was relevant to the correct measure of damages (which would have yielded a much smaller award). In other words, respondent was essentially arguing that the arbitrator had applied the wrong law on damages.

The Burlages petitioned for a writ of mandate directing the trial court to vacate its order vacating the arbitration award, arguing that the motion to vacate actually sought vacation of the award on the basis of an error of law in violation of Moncharsh v. Heily & Blase (1992) 3 Cal.4th 1, in which the Supreme Court held that legal error on the face of an award “does not provide grounds for judicial review.” In a split decision, Division Six of the Second District Court of appeal rejects the Burlages’ argument.

Like the Burlages, some bloggers tended to view the respondents’ reliance on section 1286.2 as an end run around the rule that an arbitration award cannot be vacated because the arbitrator applies an inapplicable legal standard. (See., e.g., Forrester on Real Estate Law [arbitrations decisions may have “become more appealable”]; California Employment Law [claiming binding arbitration is “under attack”].) And dissenting justice Perren was not coy in his criticism of presiding justice Gilbert’s opinion, claiming that the majority’s decision “cuts the heart out of Moncharsh.”

What Burlage portends for appellate practice

Burlage will be a real boon to appellate attorneys if review is denied or if it is granted and the Supremes affirm. What Burlage arguably teaches is that you can get review of an otherwise unreviewable legal error by the arbitrator if you dress the legal error in an argument for the statutory ground of improperly excluded evidence.  Every appellate lawyer in California, yours truly included, is now more likely to give a friendly ear to prospective clients seeking  to vacate arbitration awards on the apparent ground of legal error.

The court’s faith in the arbitration process

Justice Gilbert’s majority opinion is even more entertaining than usual. But I saw some entertainment value someplace where he probably didn’t intend it. Take this (my emphasis):

We agree with the trial court’s acknowledgment that not every evidentiary ruling by an arbitrator “can or should be reviewed by a court.” We also agree with its comment, “[T]hat’s not the same as saying no evidentiary ruling can or should be reviewed by a court. . . . [I]t would have the effect of . . . deleting subsection 5 from the statute [section 1286.2, subdivision (a)(5)].” This answers the dissent’s concern that our opinion makes suspect every arbitration ruling excluding evidence. In our view, should the award be affirmed, arbitration itself would be suspect.

I think arbitration is plenty suspect already. Plenty of lawyers hate it precisely for its extremely limited judicial review. By broadening the scope of that review, Burlage is just likely to make arbitration’s fans view it with suspicion, too, as they lose confidence in whether it will be truly binding.

Business litigation attorney Bruce Nye finds Justice Gilbert downright naive. You can read why at CalBizLit.

UPDATE (1/6/10): Talk about night and day! Check out my post at The Ninth Circuit Blog of Appeals regarding a Ninth Circuit case decided earlier this week that I think demonstrates a far more conservative approach to judicial review of arbitration decisions (while not concerning quite the same point as Burlage, and in the context of a three-arbitrator panel rather than a single arbitrator.)

UPDATE (1/21/10): So much for my fortune-telling skills. The Supreme Court denied review today.

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. The standard, as it is currently described, grants a court of appeals power to reverse a district court’s determination of facts tried before it, and the application of those facts to law, if the court of appeals forms a “definite and firm conviction that a mistake has been committed.” At the same time, the standard denies a court of appeals the power to reverse such a determination if the district court’s finding is “permissible.”

Because it has previously been left to us to decide, without further objective guidance, whether we have a “definite and firm conviction that mistake has been committed,” or whether a district court’s finding is “permissible,” there has been no effective limit on our power to substitute our judgment for that of the district court.

Today, after review of our cases and relevant Supreme Court precedent, we re-state the “abuse of discretion” standard of review of a trial court’s factual findings as an objective two-part test. As discussed below, our newly stated “abuse of discretion” test requires us first to consider whether the district court identified the correct legal standard for decision of the issue before it. Second, the test then requires us to determine whether the district court’s findings of fact, and its application of those findings of fact to the correct legal standard, were illogical, implausible, or without support in inferences that may be drawn from facts in the record.

I’ll be straight with you here: I haven’t read the combined 107 pages of opinions. You can get more details about the case from Ninth Circuit Blog.

I’ll probably have more to say about this case after I’ve read it in detail, but for now . . . well, as I’ve noted before, detailed formulations of the abuse of discretion standard tend to incorporate multiple standards of review, each of which is applied to a discrete step in a multiple-step analysis as to whether the trial court abused its discretion. The Hinkson formulation certainly seems to continue that tradition. It is a welcome development, but I’m not sure that the second step supplies the objectivity the court claims it does.

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 the preparation leading up to the event.

Also anticipating that sentiment was the reporter who wrote the article run by the Napa Valley Register the day prior to the session, who apparently had brief experience covering appellate decisions, and offered this comparison of trial and appellate proceedings:

While jury trials have some drama, what with the grilling of witnesses and introduction of eye-opening evidence, trials also can be tedious.

At the court of appeals, it is literally stand and deliver.

A lawyer has 20 minutes or so to persuade the court he or she is right, with the other side firing back from steps away. Either side can be undone by the justices, who can ask whatever they want whenever they want of whomever they want, making hash of a lawyer’s best-laid plans.

This actually strikes me as a a pretty fair layman’s synopsis of the differences between trial and appellate proceedings. It’s no doubt enough to scare some people out of ever considering appellate practice (probably the same people who prayed all during law school that their professors would not call on them in class). For the well-prepared appellate advocate, it not only can be a great challenge, it can also be quite enjoyable.

By itself, however, the comparison does not answer the “that’s it?” query. There are plenty of subtleties (and a heck of a lot of preparatory work!) involved in every oral argument. I will continue to write on those topics, but you can see what I mean by some of my earlier posts on the topic of oral advocacy.

Well, just the impetus I needed!

Apple Introduces New Versions Of The iMac Computer And  iLife ApplicationsIf 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. Forget all that crap, and just start blogging again.

As if on cue, I got linked today in a post at Real Lawyers Have Blogs. Some kind words, too, in an interview with Michael Reitz of The Supreme Court of Washington Blog:

Lisa Kennelly: What value do you feel a blog specifically covering a state’s Supreme Court provides? Do you think every state could stand to have a blog like yours?

Mike Reitz: Yes. Every state should have a blog that covers the state’s appellate courts. The state high courts are often the courts of last resort for noteworthy cases. Additionally, state supreme courts have led the revival of looking to state constitutions, rather than the U.S. Constitution only, for the protection of individual liberties. There are a number of quality bloggers covering their state courts—D. Todd Smith of the Texas Appellate Law Blog and Greg May of the California Blog of Appeal for example.

I was horrified. Horrified. People were clicking their way here and finding at the top of the blog . . . an 8-week old post on the riveting subject of the closure schedule for the state’s courts. If they bothered to work their way down the page, they saw three posts over the four months before that. Wow, I’ll bet they were impressed!

Well, I am gearing up to blog again. And I still plan to do some tinkering with the blog. But I’ll just experiment as I go.

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.

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 subject as evidence that he was “obsessessed with this question [of when review is allowed].” I’ve described myself as a jurisdictional “geek” plenty of times, but never as “obsessed”!

Substantively, the post is remarkably thorough and fun to read. (Herrman’s obsession isn’t the only humorous point.) It concludes with interesting detail on the most recent Supreme Court decision and a discussion of practical consequences.

(For Ninth Circuit practitioners, it may be interesting to note that the trigger for Herrmann’s and Beck’s post was last month’s Supreme Court decision in Carlsbad Technology, Inc. v. HIF Bio, Inc., 556 U.S. __ (2009). Carlsbad came from the Federal Circuit, which had split from several others, including the Ninth, to hold that 28 USC § 1447(d) precludes appellate review of a remand order based on the district court’s discretionary decision under 28 USC § 1367(c) not to assert supplemental jurisdiction over state claims. The Supreme Court’s reversal vindicates the Ninth Circuit’s wisdom (not to mention adherence to stare decisis) when it declined the invitation to reconsider its position in last year’s California Dept. of Water v. Powerex ___ F.3d ___ (9th Cir. 2008). [I’ll update that cite for you later when I have access to the reporters.] By the time of the California Dept. of Water case, the rule was well-established in the Ninth Circuit that review was available by petition for writ of mandate. However, the Ninth was forced by intervening Supreme Court authority to find that review is available by appeal. My coverage of Powerex is here.)

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 primary purpose for this application is persuasion and advocacy, not necessarily empowering the disenfranchised client.

This is a very interesting concept, and certainly one that cuts against conventional legal writing wisdom. It also requires lawyers to step back from the “I’m the lawyer, I know what I’m doing, leave it to me” approach to client relations. Think how much happier your clients will be knowing not only that their values are being incorporated into the project, but that incorporating those values actually makes for better advocacy.

A civil case and a criminal case look the same to a mailbox

Prison CellFor 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 jail medical personnel had been decided against him by summary judgment. He filed his notice of appeal by handing a correctly addressed, postage-paid envelope to prison officials the day before his deadline to file, but it did not reach the court until 2 days after the deadline. The court of appeal dismissed the appeal.

Here’s how the court introduced its decision reversing the court of appeal:

The prison-delivery rule — as most recently articulated by this court — provides that a self-represented prisoner’s notice of appeal in a criminal case is deemed timely filed if, within the relevant period set forth in the California Rules of Court, the notice is delivered to prison authorities pursuant to the procedures established for prisoner mail.  (See In re Jordan (1992) 4 Cal.4th 116 (Jordan).) The question before us in this case is whether the prison-delivery rule properly applies to a self-represented prisoner’s filing of a notice of appeal in a civil case.

Rooted in common law and well established in California jurisprudence, the prison-delivery rule, also referred to as the prison mailbox rule, “ensures that an unrepresented defendant, confined during the period allowed for the filing of an appeal, is accorded an opportunity to comply with the filing requirements fully comparable to that provided to a defendant who is represented by counsel or who is not confined.” (Jordan, supra, 4 Cal.4th at p. 119.)  It also “furthers the efficient use of judicial resources by establishing a ‘bright-line’ test that permits courts to avoid the substantial administrative burden that would be imposed were courts required to determine, on case-by-case basis, whether a prisoner’s notice of appeal was delivered to prison authorities ‘sufficiently in advance of the filing deadline’ to permit the timely filing of the notice in the county clerk’s office.”  (Ibid.)

There appears to be no sound basis for construing the relevant case law and rules of court as maintaining one rule in this context for criminal appeals and another for civil appeals.  Self-represented prisoners — who can file a notice of appeal only by delivering it to prison authorities for mailing — should be allowed the same opportunity as nonprisoners and prisoners with counsel to pursue their appellate rights, regardless of the nature of the appeal pursued.  Broadening the prison-delivery rule to include civil notices of appeal also should result in additional administrative benefits both for trial courts and reviewing courts, thereby improving judicial efficiency.  Therefore, for the same reasons that persuaded us that the prison-delivery rule should apply to the filing of a notice of appeal in a criminal case, we are persuaded that a notice of appeal by an incarcerated self-represented litigant in a civil case should be deemed filed as of the date the prisoner properly submitted the notice to prison authorities for forwarding to the clerk of the superior court.

That all seems rather obvious, doesn’t it? But it wasn’t obvious at all from the relevant rules of court, as the rule for criminal appeals (rule 8.308) codifies (at subsection (e)) the prison-delivery rule, while the rule for civil appeals (rule 8.104) does not. That kind of distinction usually leads a court to infer that the drafter deliberately made the rules different, and that’s exactly what the court of appeal understandably concluded in dismissing Silverbrand’s appeal.

You’ve read warnings from me time and again that the notice of appeal deadline is a jurisdictional limitation. Miss it, and you’re stuck. There is no relief.

But here, the Supremes note a tension between the unforgiving jurisdiction nature of the deadline and a policy of according the right to appeal “in doubtful cases ‘when such can be accomplished without doing violence to applicable rules.’ ” (Citation omitted.) This policy led to the development of the prison-delivery rule in the first place. Recapping that history and noting a national trend toward application of the prison-delivery rule in civil cases, the court reaches the conclusion summarized in the block quote above: there is no good reason to treat civil appeals different from criminal appeals.

The court overcomes the literal and harsh application of the court rule by noting that the rationale of the prison-delivery is not that it extends the deadline for filing to the date the notice of appeal is actually received by the court, but rather because the rule deems the notice of appeal constructively filed on the date of delivery to prison officials for mailing, despite the fact that it does not reach the court until later. I thought the opinion did some somersaults in its analysis of the rules, but was convinced nonetheless.

Please note, all you civil litigants, even self-represented ones, this does not mean your deposit in a mailbox on the last day for filing will suffice.  Remember, the court was deciding the effect of a prison-delivery rule.  If your mailbox doesn’t resemble the one pictured, you need to get your notice of appeal to the court — not the mailbox — on time.

It’s also worth noting that Silverbrand had the benefit of top-notch counsel in the Supreme Court at a bargain price (as in “free”). The Supremes appointed appellate powerhouse Horvitz & Levy to represent Silverbrand, and he had three amicus briefs filed on his behalf.

UPDATE: Thanks to Horvitz & Levy for linking to this post from their website “bragging page” about the case.

(Photo courtesy of Andrew Bardwell pursuant to Creative Commons Attribution-Share Alike 2.0 Generic License.)

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 manner specified in this article.” A Facebook posting is probably far more likely to actually reach the defendant than is notice by publication in a newspaper. At least so long as the defendant’s Facebook account has not gone stale.

We now have e-filing and e-service of other papers. Summonses may be the last holdout, but they can’t hold out forever.

Conceivably, service would even be possible via Twitter with a few words and a link to an online post of the summons, though I wouldn’t advocate it. Imagine seeing this tweet on your iPhone:

You’re being sued — here’s your summons: http://tinyurl. . . .

For the lighter side of social media evolution, watch this.

Hat tip: My dad.