Category Archives: Appellate Blogs

Blogroll Addition: Judgment Day

Judgment DayI discovered the new blog Judgment Day a couple of weeks ago, when my stats page showed that it linked to The California Blog of Appeal. The blogger there is an anonymous attorney who dies work as appointed counsel on criminal appeals in New York and goes by the nom de blog (or is that nom de blogue?) Blakely, after Blakely v. Washington (2004) 542 U.S. 296 . Notwithstanding his (or her) New York home base, Blakely has already had a number of posts relevant to California practice.

Welcome aboard, Blakely. And congratulations on the second-best blog name ever (according to me, that is).

New Appellate Blog: “Appellate Review”

An anonymous third-year law student has gotten a head start on his appellate clerkship by starting a new blog in the last few weeks:  Appellate Review.  The writing is good, and if you enjoy this blog and others like Decision of the Day and California Appellate Report, I think you’ll like Appellate Review.  It is now on my blogroll and one of the RSS feeds I will be checking daily.

Hat Tip: Appellate Law & Practice

New California Law Blog

Matthew Stucky, a newly admitted attorney in San Diego, launched the Cal. Civ. Blog three days ago.  He describes his blog as “self-serving” because it is intended to force him to keep up with recent civil decisions, and any information it provides to others is a by-product of that goal.

This is far more humility than most bloggers have (including me)!  Matthew would seem to be a blogger that even Judge Kozinski – who famously derided bloggers for their lack of humility – would like.

Matt, welcome to the blogosphere, welcome to the bar, and good luck with both.   I think launching your blog this early in your career is an excellent idea, and I’m sure we will all find it more useful than you anticipate.

Published Order Granting Extension of Time for Government to File Brief in Death Penalty Case

Professor Martin at California Appellate Report serves up some comments, with his usual good humor, on a Ninth Circuit order granting the government more time to file a brief in a death penalty appeal.  Yes, even an order in a death penalty case can be humorously analyzed, and without violating good taste.

Attorney Fees in Public Interest Case

I added Anthony “Tom” Caso’s “The Opening Brief” to my “Appellate Blogs” blogroll a few weeks ago.  Tom is a Sacramento appellate attorney and new appellate blogger.  (By the way, Tom, welcome to the blogosphere.)

Today, he has an excellent post entitled “Can Fees Exceed Damages?”  He discusses yesterday’s decision in Estrada v. Fedex Ground Package System, Inc., case no. B189031 (2d Dist. August 13, 2007), in which the Court of Appeal reverses an attorney fee award for plaintiff and remands for reconsideration of the amount.  This was no “small potatoes” case.  From the opinion:

Estrada’s motion asked for $619,691 in costs and $6,789,325 for his attorneys’ fees, a total of $7,409,016 — plus a 2.0 multiplier as compensation for delay and contingency, a total of $14,818,032. The trial court reduced the fee by 18 percent (finding the amount “slightly bloated”) but otherwise granted the motion (including the 2.0 multiplier) and gave Estrada a total of $12,373,875 for costs and fees, noting the risk inherent in a contingent fee, the “financial burden of private enforcement,” and the years of “long, hard-fought” and “labor intensive” litigation involving “enforcement of an important right” that conferred a “significant benefit on a large class.”  FedEx contends the award is erroneous because Estrada was motivated primarily by his own financial interests, that any benefit to a larger class was incidental, that no significant benefit was conferred on the public or a larger class, and that the trial court’s dual use of the same reasons to both calculate the fee and justify the multiplier created a windfall.

Tom provides the highlights of the court’s resolution of the issues at his blog, including an excellent tip for any attorney briefing a fee motion in a public interest case, especially any attorney considering requesting a multiplier.

Military Additions to the Blogroll

Let me join Appellate Law & Practice in welcoming the Military Justice Blog to the legal blogosphere. According to the blog’s subheading, the Military Jusice Blog will include miltary appellate issues. It appears to be an anonymous blog with the profile name “Sacramentum,” which, according to the profile, “was an oath taken by all Roman legionaries on entering the Roman army and was the foundation of military discipline.”

AL & P’s post also referenced CAAFlog, a well-established blog by seven contibutors following developments in the United States Court of Appeals for the Armed Forces (CAAF).

I remember reading while I was a Marine Corps officer (in fact, it might have been asigned reading) about a newspaper columnist who wrote that “Military justice is to justice what military music is to music.” Call me a cynic, but I’m pretty sure he wasn’t paying a compliment.

I only served on one court martial. Other than that, I didn’t have much exposure to the military justice system. But I know there are some talented, dedicated lawyers in the military. They do tough work under difficult conditions, and my hat’s off to ‘em.

A Quip Too Far? Update

I’ve updated my May 17 “A Quip Too Far?” post with a link to more recent, and quite excellent, commentary on the unorthodox opinion in Funny Cide Ventures, LLC v. Miami Herald, and am providing this separate post for those who already read my previous post and aren’t likely to see the update in it.  Matt Conigliaro of Abstract Appeal promised last week to follow up on his original post, and he delivers a winner with his explanation of why it may be impossible to make judicial opinions understandable to non-lawyers and still have them adequately serve their function as precedent.

A Quip Too Far?

The writing style on display in a Florida appellate decision, Funny Cide Ventures, LLC v. Miami Herald, Fourth Dist. Ct. of Appeal case no. 4D06-2347 (May 16, 2007) has attracted some attention today. The actual per curiam decision is run-of-the mill, but one of the judges took it upon himself to write a supplemental opinion that spends its first few pages complaining about the dullness of typical legal writing before launching into an unconventional style that, if read aloud, sounds like a dime store novel detective recounting the events of the case.

To be fair, Judge Farmer lays out why he wrote the supplemental opinion:

In my view nothing that is available in human experience ought to be banned by convention in judicial opinion writing.

I should state publicly my own resolution, made several months ago.  I had decided that the style of some opinions could — and should — be unconventionally changed for greater openness to all readers.  I would try to write some opinions in styles and tones calculated to make legal reasoning clearer for those without law degrees.  Then came this case.

Nothing, judge?  Admittedly, the somewhat far-out legal theory in this case invites some mirth.  Plaintiff owners of the thoroughbred Funny Cide alleged that as a result of a statement by the Miami Herald suggesting that Funny Cide’s jockey cheated in his Kentucky Derby win, the jockey rode the horse too hard in his Preakness Stakes win, leaving the horse with no reserves and unable to win the Belmont Stakes to complete the fabled Triple Crown.  (Law.com covered the lawsuit here when it was filed.)

Judge Farmer concludes his introduction with this:

So I give this explanation for what I wrote, laying my version along side the panel’s substitute.  Readers can compare a conventional opinion with an unconventional style — the pious with the impious.

Several bloggers take the judge up on his invitation.

Professor Orin Kerr at The Volokh Conspiracy titles his post “Most Self-Indulgent Opinion?” Kerr makes clear in his conclusion that he is not against witty writing per se:

To be clear, I really enjoy clever and well-written legal opinions. Once in a while, a joke in a legal decision can be really well-done and harmless (and can even advance an argument). And yes, I’m sure a lot of people find this sort of thing entertaining. But legal decisions are government documents; they are statements from the judiciary as to the rules that govern our affairs. Maybe I’m just old-fashioned, but I would rather judges err on the side of writing clear, short, and direct opinions rather than trying to impress us with how funny they can be.

The comments are worth browsing.

Nevada appellate lawyer Tami Cowden at Appealing in Nevada is way on the other side of the spectrum in her post, “A page turner of an opinion“:

I’ve long been a proponent of using fiction writing techniques in legal writing. But even I am bowled over by the gripping opinion created by Judge Farmer of the Fourth District Court of Appeals of the State of Florida in Funny Cide Ventures, LLC v. Miami Herald Publishing Co.  Alas, the rest of the court did not appreciate Farmer’s style, and so the first opinion is same old, same old. But read on. You’ll get to the good stuff.

I agree with both, to an extent.

I read (and recommend) Cowden’s piece in Nevada Lawyer on using fiction-writing techniques in brief writing.  She doesn’t so much recommend a style as she does technique in proposing that lawyers can be more persuasive by incorporating elements of fiction — theme, characters in conflict, a point of view and “showing rather than telling.”  And I think she makes a persuasive case for it.  I just don’t think Judge Farmer does a very good job of carrying it off.

The reason I think the opinion fails, despite its good intentions and my agreement with Cowden that fiction techniques can be effective, is that Judge Farmer is also trying to be cute. That’s where I agree with Professor Kerr. Notwithstanding the justifications Judge Farmer offers, I found it hard to read the opinion without thinking that he was being too “smart-alecky” in a bid to seek attention, rather than making a good faith effort to achieve his stated goal of making the opinion more readable to non-lawyers.

Finally, note two more takes on the subject.

The Wall Street Journal’s Law Blog takes note of the opinion’s novelty without taking a stand on it except to say, “If you’re going to read one opinion today, the Law Blog beseeches you to check out Funny Cide Ventures v. Miami Herald.

Florida appellate lawyer Matt Conigliaro of Abstract Appeal offers the briefest of comment here, but promises more later.

Update (5/24/07):  Matt Conigliaro has his promised update here, and it’s very good.  He’s the first I’ve seen raise the excellent question of whether judicial opinions can be made understandable to non-lawyers while still serving well in their function as precedent.  His argument is well worth reading.

Legal Blogosphere Reacts as Ninth Circuit Puts the Brakes on CDA Immunity for Online Services

Yesterday’s Ninth Circuit decision in Fair Housing Council v. Roommates.com, LLC, case no. 04-56916 (May 15, 2007) has the digital legal world abuzz . . . as one should expect of the latest decision on the scope of immunity afforded to online services by the Communications Decency Act (“CDA”), 47 U.S.C. § 230(c).

In this case, two municipal fair housing councils sued Roommates.com, an online clearinghouse for those seeking to obtain roommates or move in as one. They alleged that the website published discriminatory roommate preferences in violation of the Fair Housing Act and various state laws. The district court found Roommates immune under the CDA and granted summary judgment on the FHA claim.

Judge Kozinski’s majority opinion succinctly summarized the bounds of immunity under the CDA:

In other words, if Roommate passively publishes information provided by others, the CDA protects it from liability that would otherwise attach under state or federal law as a result of such publication. But if it is responsible, in whole or in part, for creating or developing the information, it becomes a content provider and is not entitled to CDA immunity. (Footnote omitted.)

The majority opinion then finds that Roommates lacks immunity under the CDA for publishing and e-mailing member profiles containing members’ gender, sexuality, and children information and preferences, which it collects from its members via an interactive, drop-down menu registration process. But it finds that Roommates is immune from liability for publishing the free-form comments submitted by its members. Concurring and dissenting, Judge Reinhardt would also find immunity lacking for the latter publication.

Some bloggers suggest a possible relationship to anti-blogging sentiment recently expressed by Judge Kozinski. Howard Bashman at How Appealing says this “decision screwing-up the protection from liability for online postings” might have been foreshadowed by “Judge Kozinski’s recent expression of anti-blogger sentiment,” to which he links. David Lat at Above the Law headlines his post about the case: “Does Judge Kozinski Hate Blogs?” University of San Diego School of Law Professor Shaun Martin, blogging at California Appellate Report, spies a “tangential slam on bloggers” in footnote 1 of the opinion, but doesn’t seriously tie the decision to anti-blogging bias.

In a subsequent post, Bashman links to an article about the case that will appear in Wednesday’s New York Times.

UCLA law professor Eugene Volokh at The Volokh Conspiracy has two posts about the case. The first is a detailed analysis of the decision. His second is a commentary on the (un)constitutionality of limiting free speech and free intimate association rights to advertise for and select a roommate of one’s choice.

Professor Eric Goldman of the Santa Clara University School of Law, blogging at Technology and Marketing Law Blog headlines his take “Ninth Circuit Screws Up 47 USC 230.” He sees a “180” being pulled by the court:

Just a couple months ago, in Perfect 10 v. CCBill, the Ninth Circuit issued an incredibly expansive 230 ruling. Today, in a highly fractured opinion, they go in the completely opposite direction, creating a significant exception to 230’s coverage that’s bound to spur plenty of new unmeritorious and ill-advised lawsuits from plaintiffs. Why the 180? Such is life in the Ninth Circuit.

The Decision of the Day blog provides analysis supporting its opinion that the “decision suggests that § 230 may be a lot narrower than some websites would like.

Bashman’s and Goldman’s posts suggest ramifications for pending suits against DontDateHimGirl.com and the insanely popular Craig’s List.

Thanks to the bloggers mentioned above for providing many of the links.

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