Appellate judge Alex Kozinski addresses the dangers of unsettled science in the courtroom

Or, as the headline over Judge Kozinski’s opinion piece in today’s Wall Street Journal calls it, “voodoo science.” And what this justice on the Ninth Circuit Court of Appeals (a federal appellate court) has to say has nothing to do with global warming (at least not directly).

Writing on a report to be released by the Obama administration today from the President’s Council of Advisors on Science and Technology (PCAST), Judge Kozinski calls for lifting, or at lease easing, restrictions imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) on federal court review of state court criminal judgments, because the report finds that many of the scientific methods used to convict criminal defendants, including long-standing methods like fingerprint identification, are – in the judge’s words – “flawed, some irredeemably so.” This is scary stuff for everyone, not just those in the criminal justice system:

Only the most basic form of DNA analysis is scientifically reliable, the study indicates. Some forensic methods have significant error rates and others are rank guesswork. “The prospects of developing bitemark analysis into a scientifically valid method” are low, according to the report. In plain terms: Bitemark analysis is about as reliable as astrology. Yet many unfortunates languish in prison based on such bad science.

Even methods valid in principle can be unreliable in practice. Forensic scientists, who are often members of the prosecution team, sometimes see their job as helping to get a conviction. This can lead them to fabricate evidence or commit perjury. Many forensic examiners are poorly trained and supervised. They sometimes overstate the strength of their conclusions by claiming that the risk of error is “vanishingly small,” “essentially zero,” or “microscopic.” The report calls such claims “scientifically indefensible,” but jurors generally take them as gospel when presented by government witnesses who are certified as scientific experts.

Judge Kozinski asserts flaws in analysis of fingerprints, bitemarks, firearms, footwear, hair, and “char patterns.” The last of these is used to determine whether a fire is the result of arson, and, according to Judge Kozinski has been shown by studies to have “absolutely no scientific basis.” Judge Kozinski notes that at least one person has been executed following a conviction based on char pattern analysis.

If you initially recoil from Judge Kozinski’s call to amend the AEDPA, consider this harrowing fact cited by the judge: of more than 7,600 convictions (including dozens of capital cases) involving FBI lab examiners that were impugned by a 1997 Justice Department inspector-general report, only 17  had been reviewed by 2014, seventeen years later. Judge Kozinski concludes:

Among the more than 2.2 million inmates in U.S. prisons and jails, countless may have been convicted using unreliable or fabricated forensic science. The U.S. has an abiding and unfulfilled moral obligation to free citizens who were imprisoned by such questionable means. If your son or daughter, sibling or cousin, best friend or spouse, was the victim of voodoo science, you would expect no less.

Judge Kozinski has a knack for challenging political ideologies of all stripes, and I think his highlight of the PCAST report (and, of course, the report itself) could prove challenging, and not just on the issue of criminal justice reform. “Law and Order” types who claim the science on climate change is unsettled may have a hard time rejecting Judge Kozinski’s call for reform, while full-throated advocates of the judge’s suggested reforms who also campaign on legislation to combat climate change may have to admit that maybe the science on climate change is not as settled as they say it is. In short, the report profiled by Judge Kozinski should get a lot of people thinking.

UPDATE: It occurred to me immediately after publishing this post that the challenge to politicians would be even greater if the AEDPA had originally passed with broad bipartisan support, so I looked up the vote and . . . yes, this is going to be a problem for a lot of politicians: the votes for the AEDPA, which was passed in identical form in both houses of Congress, was 91-8 in the Senate and 293-133 in the House of Representatives.

Don’t treat one superior court judge as the reviewing court for another

Writs and appeals are sometimes not the only routes (or even the preferred routes) to relief from an adverse order or judgment. Motions for reconsideration, post-trial motions for new trial or to vacate the judgment, and motions to set aside a judgment all have the possibility of getting you a “reversal” of sorts without ever leaving the superior court.

I’ve written before about how a superior court judge may change a prior interim ruling on his own motion, even when the decision to do so is triggered by a faulty motion for reconsideration. The chief limitation on this practice is that, in most cases, one judge on a superior court cannot reverse the ruling of another judge on the same superior court, at least so long as the original judge is still available, i.e., still on that court. In Marriage of Oliverez, case no. H040955 (6th Dist., July 27, 2015), the court confirms that this rule applies even when the case has been transferred to a new judge for trial.

The original judge in Oliverez had denied husband’s motion pursuant to Code of Civil Procedure section 664.6 to enforce a settlement. The case was then transferred (for reasons the court was unable to discern from the record) to another judge, before whom it was tried. In his tentative ruling, the second judge stated his intent to reconsider the first judge’s ruling on the settlement enforcement motion and later gave formal notice of its intent and afforded the parties an opportunity to brief the issue. The second judge then issued a statement of decision and final judgment, in which he vacated the prior order denying the motion and entered a judgment of dissolution that incorporated the terms of the settlement. Wife appealed.

The Court of Appeal covers the “narrow” exceptions to the general rule that one trial court judge may not reconsider and overrule an interim ruling of another trial judge:

“[W]here the judge who made the initial ruling is unavailable to reconsider the motion, a different judge may entertain the reconsideration motion.” Another exception is when the facts have changed or when the judge has considered further evidence and law. Additionally, a second judge may reverse a prior ruling of another judge if the record shows that it was based on inadvertence, mistake, or fraud. Mere disagreement, as here, with the prior trial judge’s ruling, however, is not enough to overturn that ruling.
(Citations omitted.)

Since the first trial judge in Oliveras was still on the bench, and it was apparent from the second judge’s ruling that he merely disagreed with the first judge on the original evidence and law, the judgment vacating the prior ruling did not fall within the exceptions.

Perhaps the husband saw the writing on the wall. He did not file a respondent’s brief in the Court of Appeal.

So, do you want your superior court judge to reconsider an earlier ruling based on the same facts and law? Knock yourself out with the same judge, but don’t try to turn another superior court judge into a one-judge appellate court.

Federal Judge: Appellate Judges Know Nothing About Tech

Joel Spector ⓒ2013

Those words after the colon come straight from the headline at Bloomberg News, where you can treat yourself to a 40-minute interview with federal district judge Shira A. Scheindlin of the United States District Court for the Southern District of New York, conducted at the 2015 Big Law Business Summit.

The Bloomberg headline may exaggerate Judge Sheindlin’s position somewhat. Her comments on technology are directed mostly to the technology involved in discovery of electronically stored information (“ESI”).

Given that she is referring to ESI discovery, her view on appellate judges’ knowledge is neither shocking nor insulting. As in California sate courts, most discovery rulings are not immediately appealable. They may be reviewed on appeal from a final judgment (which I suspect is a somewhat are occurrence) or by mandamus, which is discretionary. Thus, federal appellate courts are unlikely to see many discovery cases at all, let alone cases involving disputes over ESI discovery. If federal appellate judges are unfamiliar with the technology, it is probably because it rarely comes into play before them.

Don’t lightly assume that you’ve extended your time to appeal with a post-trial motion

The parties in your case have stipulated to have their case tried before a temporary judge (pursuant to Cal. Const., art. VI, § 21) and filed all trial-related papers (trial briefs, closing briefs, and requests for statement of decision) directly with the temporary judge at his alternative dispute resolution service.

So, where should you file your motion to vacate the judgment under Code of Civil Procedure sections 663 and 663a? The answer is: with the clerk of the superior court. (As all documents should be, pursuant to Cal. Rules of Court, rule 2.400(b).)

The appellant in Gonzalez v. Aroura Loan Services, LLC, case no. B247366 (2d Dist., Nov. 17, 2014) learned that lesson the hard way, but not through having its motion to vacate denied. In fact, the judge never even ruled on the motion. But the appellant suffered another consequence from filing its motion to vacate directly with the temporary judge instead of with the clerk of the superior court. Its appeal was dismissed as untimely because the improperly filed motion to vacate did not trigger the extension of time to file the notice of appeal described in rule 8.108(c), California Rules of Court.

Rule 8.108(c) extends the time to appeal whenever a party files “a valid notice of intention to move — or a valid motion — to vacate the judgment.” (Emphasis added.) The court held that the motion to vacate filed directly with the temporary judge was not valid because section 663 directs that the moving party ” shall file with the clerk and serve upon the adverse party a notice of his or her intention, designating the grounds upon which the motion will be made[.]” (Emphasis added.) Thus, the rule 8.108(c) extension was never triggered. Without that extension, the appellant’s notice of appeal was untimely.

I cannot emphasize enough how critical it is that a party file its notice of appeal on time. Gonzalez has more to say on this broader topic, which I will save for another post.

The consequences of reluctant unanimity in appellate decisions

Through LinkedIn, I ran across an interesting appellate blog, Briefly Writing. In a post yesterday, blogger Michael Skotnicki shared his alarm at learning from the Eleventh Circuit’s chief judge that panel judges that initially dissent will “routinely” change their votes in order to make the decision unanimous (presumably, only once it is apparent that the majority judges cannot be persuaded to come around to the dissenter’s point of view). Skotnicki believes the practice harms appellate counsel because a losing client may think that the unanimity of the decision suggests he got bad advice or bad advocacy during the course of the appeal, and a wining client may think that unanimity is evidence that the lawyer’s assistance wasn’t that valuable.

I think there are broader implications. Skotnicki notes that the chief judge said this practice results from a sense of comity among the judges and the desire to strengthen precedent. I don’t begrudge any judge the desire to strengthen precedent through unanimity — a desire that has been expressed by Chief Justice John Roberts of the United Stated Supreme Court —  but I think that how a panel gets to a unanimous opinion matters a lot. If an initial opinion that splits a panel can be re-drafted in a way that accommodates a dissenter without unduly weakening the central point of the initial majority– a tall order, I’ll grant —  then the resulting unanimity is well-achieved.

However, changing votes based merely on comity and a desire for strengthened precedent are bad, not just for the lawyers, but for the system. Split decisions are significant in at least two common scenarios.

At the federal level, where circuit precedent may only be changed through en banc review, the dissent can have an impact on whether the circuit will rehear the case en banc. Whether en banc review is sought of the split decision itself or of a later unanimous decision compelled by a split-decision precedent, it seems to me that a principled dissent can influence can make the difference as to whether or not en banc review will be granted, and even have an impact on the ultimate decision reached on en banc review.

In California appellate courts , where a panel is free to depart from decisions by other panels, even those in its own district (that may shock some of you non-California lawyers, but it’s true), a well-reasoned dissent may be just what convinces the appellate court that the precedent was wrongly decided.

I cannot imagine that comity and a desire to strengthen precedent are ever the only reasons for a dissenting judge or justice to change his or her vote, in the Eleventh Circuit or anywhere else. Maybe there was more to the chief judge’s comments on that topic?

Justice Kennard retiring April 5

Justice Joyce Kennard has announced her retirement from the California Supreme Court effective April 5, on which she will mark the 25th anniversary of her appointment. The article at the San Francisco Chronicle gives people a glimpse into  Justice Kennard’s drive and perseverence:

Kennard was born in the East Indies and, as a child, was held along with her mother in a refugee camp in Java during World War II. They moved to the Netherlands after the war, and as a teenager Kennard had a leg amputated above the knee after developing a tumor.

She came to the United States in 1961, found work as a secretary, and put herself through college and law school. After a stint in the state attorney general’s office, she was named to a Municipal Court in Los Angeles by Gov. George Deukmejian in 1986. Three years later, he named her to the state’s high court.

Her official bio is here.

Given that Justice Kennard cited her desire to get back to “long-neglected friends” after years of seven-day workweeks, and that her retirement letter ended on a poetic note, the fond farewell I learned at the Naval Academy seems appropriate, regardless of whether she is  sailor: May you have fair winds and following seas, Justice Kennard.

Four added to pool of prospective First District Justices

The Recorder reports on three judges Governor Brown has asked to have evaluated for vacancies on the First District Court of Appeal.

Brown has asked the State Bar’s Commission on Judicial Nominees Evaluation to vet San Francisco Superior Court Judge Marla Miller, Contra Costa County Superior Court Judge Diana Becton and ACLU staff attorney Linda Lye for openings on the San Francisco-based appellate court.

Therese Stewart of the San Francisco city attorney’s office is also being evaluated by the commission.

Of course, everything will remain up in the air for a while.
Submission of a name to the commission usually indicates serious interest on the governor’s part, though there are now only two vacancies on the First District, and other prominent judges and attorneys are said to have expressed interest.
See the article for some background on these candidates.

Riverside Appeals Court goes 3-for-3 with the Supremes

That’s one of the interesting things you can learn from the chart that accompanies a front page article in yesterday’s Daily Journal. District 4, Division 2, sitting in Riverside, is one of only two divisions to have a perfect record on the review of its decisions by the California Supreme Court in the last twelve months. The other is First District, Division 1, which had only one case reviewed. Three divisions had no decisions reviewed by the Supreme Court in that period.

While Division 2 in Riverside was batting a thousand, their Fourth District colleagues in Division 3 (Santa Ana), batted .ooo, getting reversed on all five cases reviewed from that division.

The main thrust of the story, covered by Ben Shatz at Southern California Appellate News, is how Justice Rushing of District 6 is the most-reversed Justice in the state for the last twelve months. Five of the decisions he wrote were reversed, as was the decision in a sixth case in which he sat on the panel.

I loved what Justice Rushing had to say about one of the reversed cases: “I would have decided [it] the same way even if someone had told me the Supreme Court was going to come down and beat me up about it.”

Another good quote from the article came from an appellate lawyer, Dennis Maio, who served for 20 years as a staff attorney at the Supreme Court: “If you are someone who writes very provocatively and stakes out a position, you are going to be noticed more, and because you are noticed more you are more likely than not going to draw criticism.”

For a more amusing take on how getting noticed is not always a good thing, here’s Steve Martin, in a scene from 1979’s The Jerk:

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!

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!

Judge Bea calls out his colleagues

In a dissent from a Ninth Circuit denial of en banc review in Lopez-Rodriguez v. Holder, case no. 06-70868 (9th Cir. Aug. 7, 2008, r’hng en banc denied March 27, 2009), a case concerning the application of the exclusionary rule to civil deportation proceedings, Judge Bea authors an opinion that puts his view of the panel decision — specifically,the reasoning by which the panel reached its decision — rather bluntly.  

In [INS v. Lopez-]Mendoza [, 468 U.S. 1032 (1984)], the Supreme Court clearly held the exclusionary rule does not apply to bar illegally procured evidence from admission in a deportation hearing. Mendoza, 468 U.S. at 1050 (holding that the “balance between costs and benefits comes out against applying the exclusionary rule in civil deportation hearings”). The panel in Lopez-Rodriguez v. Mukasey (Rodriguez), 536 F.3d 1012 (9th Cir. 2008), held precisely the opposite. How we got there is an interesting— and perhaps cautionary—tale. We seem to have turned Supreme Court plurality dicta into majority dicta simply by saying so. Then, we have applied that dicta, in a manner not consistent with the sole case cited in the dicta, to create a new rule—one never envisioned by either the Supreme Court majority or the plurality.

Judge Bea then provides detail of the 4-step analysis he claims the panel engaged in. That analysis is nicely summarized by attorney and blogger Gabriel Malor:

Step One is to dig through Supreme Court decisions for dicta (that is, non-binding editorializing) that is arguably on point. Step Two is to mischaracterize that dicta as binding and creating a new constitutional test. Step Three is to “rephrase” the new rule so as to reach wider conduct. Step Four is to impose the new rule, while acting as if it was obvious all along.

And if you don’t mind mild profanity (by today’s standards, anyway), and especially if you are usually in sync with Judge Bea, I think you’ll find it ‘s worth clicking on the link to Malor’s post just to read the title, which is even more blunt.

Judge Bea’s dissent is joined by three others, including original panel member Judge Bybee, who warned in his separate concurrence with the panel opinion that Ninth Circuit precedent “has set us on a collision course with the Supreme Court.” 

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.

Judge Kozinski’s “Dirty” Pictures May Not Be So Dirty

Remember the big “to do” about Judge Kozinski having posted material from an obscenity trial on his website?  My prior coverage concentrated mainly on how this could affect his qualification to preside over the trial, and noted the interesting fact that Kozinski, an appellate judge, was presiding over a trial at all.

There is another aspect to the media coverage that I did not give much thought to, and that is the way that the media painted the materials as sexually graphic and/or obscene.  Considering the mischievousness that is usually attributed to Judge Kozinski, I figured that would be water off a duck’s back.  And while it might have been just that for Judge Kozinski, a long-time critic of the Los Angeles Times isn’t taking it so lightly.

Blogger Patterico blasts the Times’s coverage of the Kozinski incident in his round-up of 2008 L.A. Times reporting at Patterico’s Pontifications.  Among his findings is that the source for the article is a man with a long-running feud with Judge Kozisinski.  And to give you an idea of his post, here’s what Patterico describes as one distortion:

The paper also referred to “themes of defecation and urination” — but vastly understated the humorous context of any such themes. Rather than graphic depictions of bodily functions, material with themes of urination turned out to be stuff like this:


Patterico appears to come at the issue as much from the Right as the Times does from the Left, and I didn’t follow all of his links, so I don’t know if his own critique is fair. But anyone who wants to give Judge K a fair shake should probably look at Patterico’s post, which includes many links to prior coverage.  (That link leads to a very long post — you can find the part about Judge Kozinski by searching for his name or scrolling down until you see his picture.)

The Mindset of Appellate Judges

Here is a well-stated look into the minds of appellate judges, from a 2-year old column by Howard Bashman:

One essential trait that an appellate lawyer must possess is the ability to think about legal issues from the perspective of judges who serve on appellate courts. Appellate courts are not only responsible for trying to reach the correct result in the cases on appeal, but their rulings often create precedents that will govern other cases that don’t even exist yet. Thus, an appellate lawyer must be cognizant not only of how existing precedent will affect an appellate court’s view of a newly filed appeal, but also about how the precedent created in the course of deciding the new case will affect the future direction of the law.  

Not every appeal has such an issue.  If all appeals did, you wouldn’t see so few decisions published.  But this is a question that must be part of every case evaluation and, if such an issue is present, the question of “what if” must be anticipated and answered before it is asked.

Does it Matter Who’s On Your Panel?

Our local appellate court in Ventura (Second District, Division Six) can be a good place to hang out if you’re looking for a chuckle. I don’t think I’ve ever left a session there without having at least once laughed, or at least smiled — just not in my own case. No, I don’t laugh at anybody . . . I laugh with them.

At a recent session, a somewhat mischievous question from the presiding justice brought some grins to those waiting and provided food for thought.

Presiding Justice Arthur Gilbert is well known for his wit, and recently it even came out during the criminal case calendar. Usually, all four justices in the division are on the bench, and Justice Gilbert will announce with each case called which of the four justices are on the three-justice panel for that case. One appellant’s counsel took the podium and asked if Justice Gilbert could repeat which of the three justices were on the panel. After repeating the names, Justice Gilbert asked the attorney how she was going to do anything different now that she knew. It seemed like a mischievous question.

Wanting to know who’s on your panel, though, isn’t all that bizarre a request, especially if you’ve become familiar (or at least think you have) with the idiosyncrasies of each justice. Everyone’s heard experienced (and sometimes not-so-experienced) attorneys offer such sage wisdom as “If you draw Justice Razzamatazz, remember that he’s still bitter that the Supreme Court reversed him in Folder v. Screen, so he’s susceptible to arguments that situations shouldn’t be be governed by Folder.” True or not, attorneys act on such “revelations.” (One of the other Justices even quipped in response to Justice Gilbert’s question that if swing Justice Kennedy were on the panel, he’s the only justice the lawyer would have bothered to address.)

In fact, Justice Gilbert may have inadvertently been on to something. A while back, Tom Caso highlighted a study noting that certain substantive areas of the law draw more opinions from some judges more than others. In the words of the author “opinion specialization [is an] unmistakable part of every day judicial practice.” Tom took note of the practical implications:

If true, this suggests a more focused approach for the federal appellate lawyer. One of the difficulties for the appellate practitioner is not knowing the audience for the brief. If, however, opinions are assigned based on the specialities of the individual judges, the brief can be written with those individual judges in mind. This population of potential opinion writers is still larger than the ultimate panel that will hear the case. Nonetheless, by studying whether a particular subset of judges in your circuit write most of the opinions in your area of the law, you have the opportunity of focusing your presentation to address the concerns of those particular judges.

I think a lot of lawyers put too much stock in what they think they know of a judge’s biases. Most of the time a lawyer expresses a negative opinion about the judge, I find it is due to sour grapes over a loss.

However, a judge’s legal approach to things is certainly a fair factor to take into account. For instance, it’s probably not wise to rely on the aforementioned “Justice Razzamatazz’s” purported “bitterness,” but it strikes me as practical to look at his reasoning in the Folder case to see if you can craft an argument that is more likely to persuade him.

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Got a stay? Challenge the judge anyway!

Under Code of Civil Procedure 170.3, subdivision (c), a party may apply to disqualify the trial judge for cause, but must submit the statement of objection “at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification.”  In Tri Counties Bank v. Superior Court (Amaya-Guenon), case no. F055084 (5th Dist. Oct. 28, 2008), Tri Counties tried to convince the court of appeal that its seven-month delay met the “earliest practical opportunity standard” under the circumstances of the case.  No dice.  And in rejecting that contention, the court of appeal makes an interesting exception to a stay of proceedings in the trial court.

Tri Counties asserted that the the judge should be disqualified for conducting an independent investigation into a factual issue relevant to class certification.  It learned of the investigation from the trial court’s tentative ruling in the class certification motion and, in a supplemental memorandum, urged it as a ground to deny certification.  When the trial court certified the class, Tri Counties sought appellate review of the certification order by petitioning for a writ of mandate, citing the improper investigation as a ground to grant the petition, but did not seek the trial judge’s disualification.  Only after that petition was denied did Tri Counties submit its 170.3 statement of objection, which the trial court struck as untimely.  Tri Counties then filed a writ petition challenging that order.

Tri Counties contended that the stay issued in connection with the first writ petition prevented it from filing its statement of objection until the conclusion of that proceeding.  The court notes, however, that the stay did not take effect until more than three moths after Tri Counties became aware of the improper investigation, leaving it plenty of time to challenge the judge.

The second reason the court gave was more interesting.  It holds that proceedings regarding the qualification of a judge are distinct from the ordinary proceedings, and the stay affects only the latter:

Second, although unnecessary to our conclusion that the statement of objection was untimely, it is our view that petitioner could have filed a statement of objection even while the stay was in effect.  Our general stay of proceedings was obviously directed to the underlying proceedings between the parties to the action (i.e., to the litigation itself), not to questions of the judge’s qualification to preside over those proceedings.  A judge’s qualification to preside as judge in a particular case is foundational to, and hence distinct from, the ordinary proceedings between the parties that would be tried or heard by the judge.  (See § 170.5, subd. (f).)  Because of this basic distinction between a judge’s qualification and the underlying litigation, we do not believe that our stay could reasonably be understood as barring petitioner from promptly filing a statement of objection in the trial court.  We note further that disqualification of the trial judge was not raised in the writ of mandate petition challenging the class certification order, thus the filing of a statement of objection to pursue disqualification would not have interfered with or affected our appellate review of that order.

This is an interesting and important distinction.  It’s also quite interesting that the court went out of its way to discuss it, since it was unnecessary once it found Tri Counties had delayed too long even before the stay went into effect.

Peremptory Challenge to Judge After Remand Has Its Limits

Virtually every civil litigator knows about the procedure afforded by Code of Civil Procedure section 170.6 for disqualification of the judge assigned to the case.  Commonly called “papering the judge,” the requirements of the section are so meager that such challenges are also referred to as “peremptory” challenges, though not technically so (to my mind), and my guess is that any civil litigator who has practiced for more than a few years has invoked section 170.6 at least once.

Maybe you didn’t know that this disqualification procedure is available even after reversal on appeal.  Subdivision (a)(2) of section 170.6 provides

A motion under this paragraph may be made following reversal on appeal of a trial court’s decision, or following reversal on appeal of a trial court’s final judgment, if the trial judge in the prior proceeding is assigned to conduct a new trial on the matter.  Notwithstanding paragraph (3), the party who filed the appeal that resulted in the reversal of a final judgment of a trial court may make a motion under this section regardless of whether that party or side has previously done so.  The motion shall be made within 60 days after the party or the party’s attorney has been notified of the assignment.

Since appellants frequently feel they were treated unfairly by the trial judge in the first instance, the ability to “paper the judge” after a reversal on appeal is a critically important consideration.  It may be the one thing that convinces an aggrieved party to appeal, when that party might otherwise have been resigned to accept an adverse judgment because the prospect of having to retry the case before the same judge the party thinks is an idiot is simply too daunting.

But you’ve got to be careful about when you count on it and when you don’t, as the real parties in interest learned in C.C. v. Superior Court, case no. G040580 (4th Dist. Sept. 11, 2008), a juvenile dependency proceeding in which, after succeeding on appeal by obtaining a reversal of a reunification order, real parties successfully “papered the judge.”  Petitioner filed a petition for writ of mandate “for relief from the order accepting a peremptory challenge,” and the court of appeal granted the petition.

The language allowing a peremptory challenge on remand was added in 1985 to avoid perceived bias against an appellant of a trial judge whose judgment or order had been reversed on appeal.  (Stegs Investments v. Superior Court (1991) 233 Cal.App.3d 572, 575-576.)  But the statute applies only where the remand requires “a ‘reexamination’ of a factual or legal issue that was in controversy in the prior proceeding.”  (Geddes v. Superior Court (2005) 126 Cal.App.4th 417, 424.)  It does not apply to the performance of a ministerial act.  (Stegs Investments v. Superior Courtsupra, 233 Cal.App.3d at p. 576.)

The problem for real parties, however, is that the remand order required the trial court to perform only ministerial acts.  Those were: (1) to enter a new order denying reunification services and (2) setting a permanent plan selection hearing.  The court rejected the real parties’ argument that the subsequent hearing would require a reexamination of the same issues considered in the reunification hearing.

The real parties in interest claim, “the juvenile court in the present case will undoubtedly revisit the core determinations upon which this Court based its reversal,” meaning it will have to consider the strength of the bond between the children and the mother at the permanent plan selection hearing.  This claim is true, but the consideration of the parent-child bond at the permanent plan selection hearing is not for purposes of reunification; rather, it is to determine whether to avoid the termination of parental rights and select a different permanent plan.  (Welf. & Inst. Code, § 366.26, subd. (c)(1)(B)(i).)  This consideration will take place in a different legal context from the disposition hearing and will involve facts as they then exist.  On remand, however, the juvenile court was merely directed to enter an order denying reunification services and to set a permanent plan selection hearing.  The implementation of these directions will not constitute a reexamination of an issue of fact or a retrial of the dispositional issues.

Thus, “[b]ecause the matter was not remanded for a reexamination of an issue of fact or a retrial of the dispositional issues, we grant the petition and direct that the case be returned to [the challenged judge].”

The same considerations should not apply in the typical civil trial, where past facts are what are at issue.  But any time that future consideration of an issue will depend on facts as they then exist, “papering the judge” is apparently not an option after remand.

It’s Kennedy’s Court

So says UC Irvine School of Law Dean Erwin Chemerinsky about the U. S. Supreme Court in his front-page piece in this month’s California Bar Journal.

Simply put, on issues that are defined by ideology, the conservative position prevails in the Roberts Court except when Justice Kennedy joins with Justices Stevens, Souter, Ginsburg, and Breyer. Occasionally this term, Justice Stevens or Justice Breyer joined with the five most conservative justices to create a 6-3 or 7-2 vote for a conservative result. But never did one of the four most conservative justices — Chief Justice Roberts and Justices Scalia, Thomas and Alito — vote for a more liberal result in a case defined by ideology. The bottom line is that when the Court is divided 5-4 on issues where there are clear liberal and conservative positions, Justice Kennedy is always the swing vote.

Dean Chemerinsky never defines what constitutes an issued defined by “ideology.” I’m wondering . . . are there any that aren’t?

In his wrap up of the court’s year, I found this to be Chemerinsky’s most interesting observation:

[I]n some areas of criminal procedure — especially sentencing and the Confrontation Clauses — ideology does not predict outcomes. The conservatives on the Court, such as Justice Scalia, have taken the lead in these areas in expanding the rights of criminal defendants.

Maybe “law & order conservative” means something different than the sense with which it is usually used.

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Pepperdine’s Justice Alito Event — Video Available

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

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

Justice Alito was joined by The Honorable Michael W. McConnell, United States Appellate Judge for the Tenth Circuit; The Honorable Walter E. Dellinger III, former United States Solicitor General; Pepperdine School 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.

Mistakes in Big SCOTUS Cases? (UPDATED)

The US Supreme Court building in Washington.Image via Wikipedia

I ran across a couple of interesting posts claiming that various SCOTUS justices got the facts just plain wrong in at least three significant cases, including two very recent ones. Make of them — both the blog posts and the mistakes — what you will.

CAAFlog, a military law blog, reports that both the majority and dissenting SCOTUS justices in Kennedy v. Louisiana, case no. 07-343 (June 25, 2008), were wrong in noting that the federal government had not made child rapists eligible for the death penalty. According to CAAFlog, the Uniform Code of Military Justice makes child rapists in the military eligible for the death penalty. Get more details at CAAFlog, where a couple dozen commenters opine on the significance of the omission.

Gabriel Malor, an anonymous blogger and recent law school grad studying for the bar, notes the CAAFlog post as a follow-up to his own post last week that Justice Stevens got some facts wrong in Hamdan and Heller.

UPDATE (7/7/08):  SCOTUSBlog explains how the mistake in Kennedy may play out, and how the Department of Justice accepted responsibility for the error.



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The Ninth Offers a Party a Hint on a “Non-Issue”

It’s hardly uncommon to see a reviewing court remanding a case to give some pointers to the trial court and even to the parties or their counsel.  But it’s usually across-the-board advice or a warning against future misconduct.

I thought the advice offered in Duarte v. Bardales, case no. 06-56808 (9th Cir. July 1, 2008 [order denying rehearing and rehearing en banc]) was a little different and arguably partisan.  In the original opinion, the Ninth had reversed the trial court’s denial of a motion to vacate, under Federal Rule of Civil Procedure 59(e), of a judgment denying Duarte’s “petition for the return of her children pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (‘Hague Convention’), as implemented by the International Child Abduction Remedies Act, 42 U.S.C. §§ 11601-11610 (‘ICARA’).”  In opposing the petition for rehearing and rehearnig en banc. Bardales apparently raised the prospect that the children would be “subject to a potentially abusive environment if returned to the custody of the mother, Duarte, in Mexico.”  Because the petition had been denied in the trial court due to Duarte’s failure to appear, the trial court had never reached this issue, but is certain to encounter it on remand, which led the Ninth to offer this:

The matter of abuse is not before us and was not reached by the district court. Thus, it is a non-issue but, nevertheless, a matter of concern. The proper place to assert such claim is in the district court under appropriate provisions of the Hague Convention and the affirmative defense of “Grave Risk” which Bardales has asserted in district court but which was never reached by the district judge.

We remind Bardales and his counsel that the Hague Convention, Article 13(b) provides: “The requested State is not bound to order the return of the child if the person . . . which opposes its return establishes that (b) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”

Bardales will have the opportunity to establish by appropriate evidence that returning the children to the mother in Mexico will put the children at great risk of physical or psychological harm and that, therefore, the children should remain in California.

Perhaps concern over the welfare of the children is what led the court to address this “non-issue.”

It’s not just Bill Clinton . . .

. . . who says it all depends on what the meaning of “is” is. A Ninth Circuit opinion filed today begins: “This appeal presents the single, seemingly straightforward question whether the word ‘is’ really means ‘is,’ at least as that word is employed in 25 U.S.C. § 81.”

And it turns out the answer isn’t that easy:

Motivated largely by the plain meaning of Section 81—but after also taking into account related statutes, relevant legislative history and the language of the contract itself—we conclude that the word “is” means just that (in the most basic, present-tense sense of the word)[.]

As if to prove the answer isn’t simple, there’s a dissenting opinion.

You’re Probably Wrong about How Judges Think

Me, too, for that matter.  That’s what Judge Posner‘s blurb on the jacket of his book, How Judges Think, seems to say.  It seems to me that most commentators tend to agree that judges are often inscrutable on the bench, but many who advise on legal writing seem to assume they know what the judges want.  Do we?  Says Judge Posner:

[M]ost judges are cagey, even coy, in discussing what they do. They tend to parrot an official line about the judicial process (how rule-bound it is), and often to believe it, though it does not describe their actual practices. . . This book parts the curtain a bit.

You can read the full text of Judge Posner’s comment at the (new) legal writer.

You can also keep up with Judge Posner’s thoughts at his blog.

A Glitch In Kozinski’s Presiding over Obscenity Trial?

Ninth Circuit Chief Judge Alex Kozinski may be feeling a little embarrassed today. According to this piece in the Los Angeles Times, he accidentally posted materials from an obscenity trial on a publicly accessible portion of his web server that he thought was for private storage.

Alex Kozinski, chief judge of the U.S. 9th Circuit Court of Appeals, acknowledged in an interview with The Times that he had posted the materials, which included a photo of naked women on all fours painted to look like cows and a video of a half-dressed man cavorting with a sexually aroused farm animal. Some of the material was inappropriate, he conceded, although he defended other sexually explicit content as “funny.”

Kozinski, 57, said that he thought the site was for his private storage and that he was not aware the images could be seen by the public, although he also said he had shared some material on the site with friends. After the interview Tuesday evening, he blocked public access to the site.


Kozinski said he must have accidentally uploaded those images to his server while intending to upload something else. “I would not keep those files intentionally,” he said. The judge pointed out that he never used appeals court computers to maintain the site.

Oops! It seems doubtful, however, that many people accessed the files:

Before the site was taken down, visitors to were greeted with the message: “Ain’t nothin’ here. Y’all best be movin’ on, compadre.”

Only those who knew to type in the name of a subdirectory could see the content on the site, which also included some of Kozinski’s essays and legal writings as well as music files and personal photos.

Geek that I am, one of the more interesting aspects of this story is that Chief Judge Kozinski is actually presiding over the trial in U. S. District Court. Thus, the article addresses the appropriateness of his continuing to preside over the trial. Above the Law, which originally posted about this here, later dubbed Kozinski “Judge of the Day” and reported that its online poll (scroll down at that link) was running 60-40 against recusal as of this evening..

Stephen Bainbridge discusses the impact on Kozinski’s chances for elevation to the U. S. Supreme Court and poses an interesting and entertaining list of questions generated by the situation.

The story even made news n the U.K.

There are hundreds of reader comments at the Times and dozens more at the Law Blog post.

One thing about Kozinski’s presiding over the trial really jumped out at me (my emphasis):

The judge said it was strictly by chance that he wound up presiding over the Issacs trial in U.S. District Court in Los Angeles. Appeals court judges occasionally hear criminal cases when they have free time on their calendars and the Isaacs case was one of two he was given, the judge said.

Free time is not a luxury I would expect any chief judge of any circuit to have!

Judges Read Blogs

I’ve noted before some intersections between actual law practice and blogging. There was the blogging jury foreman and the blog where lawyers complained about judges, for example.  There are even some blogs by judges (look in the left sidebar).

Now, we have at least anecdotal evidence that judges are reading blogs. Texas appellate lawyer D. Todd Smith posts at his Texas Appellate Law Blog about his chance encounter with a blog-reading judge at a professional event. In fact, the judge is not just a blog reader, but a regular reader of Smith’s blog.

So, now I’m really curious. I’m going to fiddle around with some of the poll gadgets for blogs, and hopefully by Monday I’ll have a poll up at the top of the right sidebar that allows visitors to identify themselves as a lawyer, judge, law person, etc.

A Conspiracy Theorist’s Delight

In In re Complaint of Judicial Misconduct, case no. 07-89012 (Judicial Council of the 9th Cir. May 14, 2008), the complainant was an attorney who was also a plaintiff in a civil action. He filed a complaint against both the district judge and the magistrate judge to whom the district judge referred the civil case. The title of this post relates to the charges made by the complainant.

The complainant alleged misconduct regarding both judges with respect to discovery rulings and their decisions to continue with the case following his filing of a notice of appeal. Chief Judge Kozinski’s order characterizes these charges as challenges to the rulings themselves. Complainant had his chance to appeal, and did so. He lost. He can’t collaterally attack the rulings in the guise of a judicial misconduct complaint.

Complainant also alleged that the judges “fixed” the civil case to cover up corruption in the state judicial system. But the allegations related to the complainant’s suspension from practice are where the conspiracy theory really started to fly.

Complainant was suspended from practice by the supreme court of his home state, which prompted the district judge to order the complainant to show cause why he should not also be suspended from practice before the district court. Complainant claimed that the district judge lied about the misfiling of the complainant’s response to the OSC, refused to open a docket number for the proceedings, falsified the docket once open, hid evidence, intercepted complainant’s mailings of his state court records sent to other federal judges in the district, tore and returned documents to plaintiff in order to intimidate him, and “framed” complainant and “fixed” complainant’s suspension from practice before the district court in retaliation for complainant’s exposure of corruption in the state judicial system. Finally, he claimed that the magistrate engaged in misconduct for refusing to report the district judge.

That’s quite a story. The order disposes of the charges in less then seven pages, concluding that none of them are supported by objectively verifiable evidence sufficient to raise an inference that misconduct occurred.

But there does appear to be some misconduct here: by the complainant. The order chastises him thus:

Complainant is an attorney, so he should know better than to file such an obviously frivolous and abusive complaint. He has wasted considerable judicial resources for no purpose whatsoever. The standards for filing a complaint of judicial misconduct have been established for decades, [citation], and complainant most likely knew, and certainly should have known, that the complaint he filed comes nowhere near stating a viable claim of judicial misconduct. [Citations.]

He is ordered to show cause why he should not be sanctioned. Good luck.