Highlights from an Evening with the Division 6 Justices

English: The courthouse of Division Six of the...

Second District, Division 6 Courthouse in Ventura

Picking up CLE credit is never as easy or fun as an evening with the justices of Division 6, which I and a few dozen other lawyers did last night at the courthouse for District 2, Division 6 in Ventura. The discussion was very informal, but there was still a lot to be learned — or in some cases, have confirmed.

Much of the evening was give-and-take. I tried to take detailed notes, but I can only write so fast. So, to avoid misquoting anyone, I’ll stick to paraphrasing and, for the most part, will not attribute comments to any particular person. My intent is not to deprive anyone of proper attribution, but to avoid mistakes. That said, here a few themes that dominated:

1. Don’t try the case in the Court of Appeal

Gee, you’ve never read that here before, have you?

Although I’ve heard justices say it before, it amazes me every time I hear it: the justices see a lawyer on virtually every calendar that treats oral argument as a second opportunity to try the case. Rather than concentrate on the applicable standard of review, the lawyer will argue the relative credibility of witnesses, try to impress with flowery language, or try to influence the justices with body language and demeanor. Such lawyers stick out like sore thumbs, and they are not  doing their clients any favors. Even lawyers from big firms full of Ivy League graduates can make these mistakes. (Obviously, not every trial attorney in the court of appeal does this.)

2. The justices go out of their way to give everyone a fair shake.

The justices are very aware that each lawyer represents a real client, whether a corporation or a living, breathing person with hopes and interests that will be affected by their decision. You don’t need to bring your injured client to court for them to realize that there is a real injured person’s future at stake in a personal injury appeal.

“Pro Pers” — people representing themselves — pose a special challenge. In my experience, they usually do a very poor job and are often motivated to appeal for reasons so personal to them that it is impossible to detach themselves from the case and do a good job, even if they have a reasonable handle on the standard of review. It would be easy for the justices to lose patience with these folks, but the justices realize that everyone deserves their day in court and that the appellate process itself, no matter how it comes out, can give litigants a sense of closure and knowing they’ve done everything they can.

3. The justices love their jobs

Really, really, love their jobs. They made it sound like such a happy place to work for everyone — attorneys, clerks, you name it — that if thay had left job applications on a table for people to grab on the way out, I’m sure the supply would have been exhausted.

4. The future of electronics in the Court of Appeal

When I go to a hearing in trial court, I usually have all of the papers and the most important authorities loaded into my iPad. This not only greatly reduces the amount of stuff I’ve got to carry, it can also let me navigate from point to point far more quickly than flipping through a bunch of paper documents to double check an argument or find something in the papers that is contrary to what my opposing counsel is saying. (Normally, you don’t want to be flipping around everywhere during a hearing, whether it’s through paper pages or digital ones. With the right degree of preparedness, you shouldn’t have to. But unanticipated time arise when it is helpful to do so.)

Justice Coffee asked if we (the attorneys in the audience) felt the court was paranoid for not allowing laptops, etc. in the courtroom. While recording with such devices is a concern, and much of the judiciary at large remains strongly opposed to more use of electronics and electronic access to the courtroom, there seems to be general consensus (if I can rely on the nodding of heads last night) that more electronics in the courtroom is an inevitability, and that the bar, not the bench, will drive change in that direction.

5. Congratulations and good luck to retiring Justice Paul Coffee

Justice Coffee will be retiring soon (I believe on January 31), so some of the evening was spent reminiscing. His career took him from San Jose to some “cow counties” to Ventura. I didn’t know until last night that he lives on a boat. Made me jealous! Even though he will soon become a landlubber, I’ll still wish him the best wishes that I, as a “boat school” graduate, can offer: fair winds and following seas, Justice Coffee!

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.

Pepperdine’s Justice Alito Event — Video Available

Pepperdine has video of the conference on judicial opinion writing that I commented on here (actually, I was commenting on Ben Shatz’s write-up of the event).  Here’s the description accompanying the video:

The Honorable Samuel A. Alito, Jr., associate justice of the United States, spoke on “Lawyering and the Craft of Judicial Opinion Writing” at the School of Law on Wednesday, July 30, to a crowd of more than 200 students, alumni, law professors, journalists, judges, and special guests.

Justice Alito was joined by The Honorable Michael W. McConnell, United States Appellate Judge for the Tenth Circuit; The Honorable Walter E. Dellinger III, former United States Solicitor General; Pepperdine School of Law dean and former Solicitor General Ken Starr; and Professor Douglas W. Kmiec, former United States Assistant Attorney General (OLC).

Hat tip: Crime & Federalism.

Report from the Pepperdine Conference on Judicial Opinion Writing

Pepperdine hosted a conference Wednesday on the craft of judicial opinion writing, with a panel that included Justice Samuel Alito. LA appellate attorney Ben Shatz attended and today posts his write-up of the event at the Los Angeles County Bar Association Blog, En Banc. His post is worth a read, especially if you wish you had been there.

Two things jumped out at me from Ben’s report.

First: Where were all the lawyers? Ben notes that the auditorium didn’t exactly look empty, but wasn’t close to capacity, either, and he wonders if Justice Alito is unpopular with the bar.

Second: Tenth Circuit Judge Michael McConnell gave some praise to the legal blogosphere (emphasis added):

Judge McConnell lamented that legal academics are often too political and ideological in their analysis of opinions. The first question should always be “is the opinion well grounded,” not a focus on the result. Politicians and practicing lawyers need to focus on results, but law professors shouldn’t. Blogs are beginning to provide appropriate critiques of judicial opinions, especially in certain substantive areas. Indeed, blogs are often the best (or only) feedback he gets on opinions, and thus he views them as a favorable and welcome development.

So different than what Judge Kozinski had to say about blogs, though that was some time ago.

UPDATE (8/7/08): Video of the conference here.  (Hat tip: Crime & Federalism.)

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Attorney Fee Program Coming Up in Los Angeles

One of the organizers of an upcoming attorney fee CLE program in Los Angeles was lucky enough to reach me by phone this morning before I was too embroiled in my work, and asked if I would be kind enough to help publicize the program. Well, I’m a sucker for a request like that, and especially so in this case, since attorney fees are of particular interest to me (and The Pro Bono Road to Riches is still one of the most traffic-generating posts I’ve had).

So, here’s the skinny:

This description of coverage comes straight from straight from the promotional materials (PDF download) from the presenting organization, the National Association of Legal Fee Analysis:

  • Fee‐Shifting Provisions & Prevailing Party: Statutes & Case Law
  • Fee Recovery in Commercial Litigation
  • Attorney Fees in Class Action Litigation
  • Attorney Fees & Legal Billing: A Practical Guide
  • Reasonable Fees in Cumis Counsel Situations
  • Recovering Attorney Fees in Insurance Bad Faith Litigation

Looks promising. The PDF materials include a link to th registration site, or just click here.

Correction re: Live Coverage of Marriage Cases Oral Argument

Thank you to alert commenter Stephen Ehat for pointing out an error in my post announcing television coverage of the marriage cases oral arguments before the California Supreme Court on March 4. I originally posted that the arguments would be taped for later broadcast, but they will actually be broadcast live. For details, see the announcement at the California Courts website.

Ninth Heads for Vegas

A 3-judge panel of the Ninth Circuit, including Chief Judge Kozinski, will hear three cases at the William S. Boyd School of Law on the campus of University of Nevada, Las Vegas on February 27. Details here.

As everyone knows, a published opinion resulting from any of those cases will become precedent in nine western states and two Pacific Island jurisdictions. Which means that for the panel to uphold the “What happens in Vegas, stays in Vegas” motto, they’ll have to resist certifying the opinions for publication.

DRI Appellate Advocacy Seminar: February 28-29, 2008

The 2008 DRI Appellate Advocacy Seminar is scheduled for February 28-29 in Orlando, Florida.  I was tipped off to the event by New Orleans appellate attorney Ray Ward of the (new) legal writer, who gives this annual seminar a glowing recommendation at his blog:

I have been fortunate enough to attend every DRI Appellate Advocacy Seminar ever held, from the first one in 1999 in Washington, D.C. through last year’s in Phoenix, Arizona. The DRI seminars are, in my opinion, the best of their kind in the nation.

You can learn more about the presentations scheduled for the seminar from Ray Ward’s post, the DRI website, and this PDF brochure.

Thank You to LACBA Appellate Courts Committee

I had the honor of sharing the stage on Monday with Denise Howell of Bag & Baggage fame (not to mention Lawgarithms and other projects) for a presentation on blogging and other internet media to the Los Angeles County Bar Association Appellate Courts Committee. Denise has more than six years of blogging under her belt. I spoke specifically from the “young blogger perspective.”

The committee members were quite receptive and interactive, with great questions that were fun to answer. Thanks to all involved, including Denise, and to Ben Shatz for setting it up.

By the way, because I expect a few visits from committee members as a result of my shameless plug at the conclusion of the presentation, I intend to park this post at the top of the blog for a day or two. For that period, new posts will appear below this one.