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!

[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.

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.” 

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.)

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.

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.

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.

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 “papered the judge.”  Petitioner filed a petition for writ of mandate, and the court of appeal grants 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 Court, supra, 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.

Hat tip: Cal Biz Lit.

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.

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.

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.

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.”

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.

[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.

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 http://alex.kozinski.com 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 WSJ.com 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!

Thanks to Curt Cutting of California Punitive Damages blog for the tip.

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.

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.

All my California readers undoubtedly know this already, but for the benefit of readers elsewhere in the Ninth Circuit, here’s a link to the cover article of this month’s California Lawyer magazine, which is a profile of Chief Judge Alex Kozinski. You do not have to be a subscriber to get to the article.

Created by the FRIENDS OF THE LOS ANGELES COUNTY LAW LIBRARY in 2005, the BEACON OF JUSTICE AWARD is given to those whose character and outstanding service to the legal community, especially in the areas of access to justice and legal information, education, scholarship, writing and/or journalism, and public service and/or advocacy, have inspired others and brought them the respect and admiration of the legal community.

This page at the Friends’ website gives their reasons for giving this year’s award to Justice Gilbert. The first few lines:

We recognize Justice Gilbert because of his exemplary service and significant contributions to the quality of justice, legal scholarship and legal education. The quality of his writing has earned him the title, “The Court of Appeal’s poet laureate.”

It seems to me that this acknowledges that good legal writing from judges is itself a public service.

As for the awards ceremony . . . awards ceremonies can sometimes seem to drag on forever, but this one didn’t. All of the speakers were engaging and witty — even Attorney General Jerry Brown, whom most people, I suspect (then again, maybe its just me), would never guess could be so charming. Justice Gilbert’s Division Six colleague, Justice Steven Perren, did a great job as emcee.

The library was crowded with active and retired judges, and lots of appellate heavy-hitters were on hand. I met some new people and am glad I attended.

Attendees received a copy of Justice Gilbert’s recently published book, Under Submission: The Columns of Arthur Gilbert (The Rutter Group 2008), a collection of his columns that have appeared in the Daily Journal since 1988. Many of his columns are also republished on his blog, Gilbert Submits, which he subtitles, “Court of Appeal Justice Arthur Gilbert in a rare display of poor judgment shamelessly posts selected columns he has written for the Daily Journal during the last decade.”

Hmmmm . . . . turning a blog into a book. Nah, it’ll never happen here. Not because I’m a blogging purist, but because no one would ever want to assemble my posts into a book.

He says he asks questions when he needs to.

Which reminds me of the kid who wouldn’t talk. At age 2, his parents took him to the doctor, who could find nothing physically wrong with him.

But at age 4, he still hadn’t said a word. To the doctor again. Again, nothing physically wrong.

And so it went for years, with his parents taking him to the doctor every year or so, only to be told again and again that there was no physical explanation.

Finally, one day when the boy was about 12 years old, he said during dinner, “The potatoes are cold.” His parents dropped their silverware in stunned disbelief.

“You can talk!” they shouted in unison.

“Of course I can talk,” said the boy. “So what?”

His parents made the obvious point: “You never talked before!”

“Up until now,” said the boy, “everything was fine.”

I wonder if they ever told that one in the Thomas household.

UPDATE (3/6/08): I’m curious who you readers in California or the Ninth Circuit find least likely to ask questions. Name your favorite silent California justice (Supreme Court or Court of Appeal) or Ninth Circuit judge in the comments.

Judge O’Scannlain, joined by five other judges, dissents from the order denying rehearing en banc, and Chief Judge Kozinski writes a second — and very brief — dissent to highlight Judge O’Scannlain’s criticism of the “smell test” that the district court explicitly applied in granting the motion to dismiss. It’s hard to say how sarcastic the district court was when it made that remark on the record, but Chief Judge Kozinski writes: “A test based on the olfactory apparatus of each district judge, rather than on well-defined and closely cabined legal standards, would give the district courts far too much say over who gets prosecuted and when.”

Clever, but initially I thought that was a bit over the top. After all, the panel did not defer to the district court’s discretion; it adopted a de novo standard for reviewing an order dismissing the indictment on the ground of prosecutorial vindictiveness, then set about a very detailed review of the facts and law. Neither Judge O’Scannlain nor Chief Judge Kozinski take issue with the panel adopting a de novo standard of review, but both appear to believe that the analysis the panel conducted under that standard doesn’t improve much — if at all — on the district court’s “smell test.”

(Public domain image courtesy of United States Fish & Wildlife Service.)

UPDATE (3/6/08): Robert Loblaw at Decision of the Day “smells” a law review article to be spawned from the case.

UPDATE #2 (3/6/08): I noticed after posting the first update that the type offset caused by the photo may have made it look like the excerpt from Judge Kozinski’s opinion (which was intended to be in a block quote format) was my writing. I’ve removed it from the block quote and placed it in quotation marks to clear that up.

The availability of designated justices may make this seem like a moot consideration for our own Supreme Court, but keep in mind that the California Supreme Court dismissed a case last year because four of the seven justices had developed conflicts (through corporate mergers occurring after the grant of review). Would selling off the stock have been adequate to remove the conflicts?

More on the topic generally from Professor Bainbridge at BusinessAssociationsBlog.com.

But the title of his latest novel caught my eye. The premise of The Appeal, based on my reading of Random House’s web page for the book, is that the owner of a chemical company appealing from a huge verdict against it in a “cancer cluster” case decides to finance its own candidate for election to the Mississippi Supreme Court. As publisher Random House describes:

Through an intricate web of conspiracy and deceit, [the chemical company owner's] political operatives recruit a young, unsuspecting candidate. They finance him, manipulate him, market him, and mold him into a potential Supreme Court justice. Their Supreme Court justice.

Thanks to How Appealing, who also provides a link to a review of the book.

UPDATE (1/29/08): Here’s a post at WSJ.com Law Blog discussing real life corruption and the intersection of judicial campaign contributions and judicial decision-making: Tulane Law Prof Examines Whether Justices are for Sale.

UPDATE (1/30/08):  Prawfsblawg writes up Adam Liptak’s coverage of the Tulane Professor’s article.

Even more interesting to me: the order does not set out the entirety of the language to be deleted. Instead, it references the sentence to be deleted only by the beginning words in that sentence: “Lawyers should learn . . . .” Which gives you a hint that the excised language is a little snarky, and may even prompt the average reader to look up the original opinion. Which you won’t have to do if you go to California Appellate Report.

As one might expect, the always-present “controversy” over the Ninth Circuit is discussed in the article. Professor Dauber notes one result of that controversy, in what I think is an interesting way to think about it: “People in Maine know about the 9th Circuit. That’s weird,” Dauber said. “No one in California knows anything about the 1st Circuit.”

The main page includes links to the governing rules,  a page listing the orders, and a downloadable complaint form.

Given that Scalia’s opinions (or in particular, his dissents), are often known for their nastiness or sarcasm, I’m particularly curious about the advice that he’ll provide to lawyers.  Will Scalia counsel restraint and professionalism in legal writing, and if so, how will he reconcile that with his own opinions?  Will Scalia offer “real life examples” of legal briefs or arguments that don’t simply don’t work, and if so, will readers be able to recognize the lawyers whose work is critiqued in the book?

Like I’ve said before, judges get away with things lawyers would never (or should never) dream of writing.  One of the perks, I guess.

Problem: the district court only gave notice of the OSC re dismissal via e-mail. Since plaintiff’s counsel did not consent to electronic notice (Fed. R. Civ. P. 5(b)(2)(D)) and did not regularly check his e-mail (and, given his lack of consent to electronic notice, had no obligation to do so), he missed the hearing. Putting aside the issue of whether a dismissal sanction is an abuse of discretion when it is imposed for missing a single hearing — an issue raised very briefly by the court — the notice was ineffective. Notwithstanding the attorney’s reasonable excuse for missing the hearing, the trial court denied plaintiff’s motion to vacate the dismissal, and did so without a hearing.

This easily meets the standard for “abuse of discretion,” says the Ninth. Indeed, the court takes the unusual step of apologizing to the parties. In the same sentence, it admonishes the district judge to “exercise more care and patience in the future.”

The district judge in question is Manuel Real of the Central District of California. Two prominent bloggers used the Calderon opinion to opine on Judge Real; both California Appellate Report and Decision of the Day do so in language that suggests they don’t plan to appear before Judge Real any time soon. More of Judge Real’s colorful history is memorialized in this Law.com judicial profile.

Anyway, on to the point reflected in the title of this post.

I wonder if Judge Real wasn’t made impatient because of the electronic notice. With electronic this and electronic that, we (as a society) expect everything to happen now.

By the time I was admitted to the bar in 1992, faxes were common. Car phones were widespread (though handheld cell phones were not), though somewhat pricey. My first firm (more than 1200 lawyers strong at the time) was still using Wang word processing in its LA office and e-mail had not yet been implemented firm-wide, if I recall correctly. Portable computers were heavy and hugely expensive. So things have accelerated greatly in the 15 short years since I became a lawyer.

I recall a partner at one of my BigLaw firms reminiscing in the mid-90’s about the “good old days” before fax machines. She thought the practice of law was much more civil before faxes. Fax machines, in her mind, were a leading cause of threatening letters sent by opposing counsel on Friday afternoons demanding detailed responses by Monday morning . . . or sooner. The same partner usually made a point of being totally incommunicado when on vacation.

My favorite anecdote regarding the impatience that technology breeds came from an an associate at Baker & McKenzie (where I spent my 2L summer in 1991), who once saw two attorneys in Los Angeles pacing back and forth impatiently outside the firm’s mailroom, cursing under their breath. When he asked why, they responded that they were faxing a contract and “it’s taking three minutes per page for this contract to get to Tokyo!”

While properly leveraging technology can make your life easier, I have some sympathy for (and sometimes count myself among) those who believe that, in many respects, technology just makes us work harder!

The issues covered by the amendments include handling cases with self-represented litigants, judicial disclosure, character reference letters, self-reporting by judges after being charged with or convicted of certain crimes, and misusing the prestige of the office by commissioners or referees.

The updated code is available as a downloadable PDF. Click here for the PDF.  The changes do not take effect until January 1, 2008.

Felony defendant Davidson had his suppression motion denied by Judge Schwartz. Davidson filed a complaint against Judge Schwartz with the Commission, then was convicted after his case was transferred to another judge. In connection with his motion for a new trial, he filed a Pitchess motion (Pitchess v. Superior Court (1974) 11 Cal.3d 531) for records from the Commission concerning Judge Schwartz. The trial court ordered the records produced for in camera review.

The court of appeal grants the writ petition, issuing a writ compelling the trial court to vacate its order and to enter a new order denying Davidson’s Pitchess motion and granting the Commission’s motion to quash the subpoena. The Commission clearly qualifies for the official records privilege (Evid. Code § 1040); the court is unaware of any previous decision under Pitchess allowing such discovery; allowing discovery would “encourage mischief without a concomitant benefit to a criminal defendant”; the discovery would allow Davidson to indirectly question Judge Schwartz regarding the denial of his suppression motion, something he cannot do directly, and; other states with similar commissions have denied similar discovery.

All well and good, but the court also held that the trial court’s order for in camera review is invalid because the non-discoverability of the records would make such review a “wasted effort” and, “more to the point,” the judge has “no more right to see the Commission’s records than does any other member of the public.” It’s hard to square either rationale with Evidence Code section 915, subdivision (b):

When a court is ruling on a claim of privilege under Article 9 (commencing with Section 1040) of Chapter 4 (official information and identity of informer) . . . and is unable to do so without requiring disclosure of the information claimed to be privileged, the court may require the person from whom disclosure is sought or the person authorized to claim the privilege, or both, to disclose the information in chambers out of the presence and hearing of all persons except the person authorized to claim the privilege and any other persons as the person authorized to claim the privilege is willing to have present. If the judge determines that the information is privileged, neither the judge nor any other person may ever disclose, without the consent of a person authorized to permit disclosure, what was disclosed in the course of the proceedings in chambers.

The only way to read the decision in light of Evidence Code section 915 is that it forecloses any discovery of Commission records ever.

Thanks to Appealing in Nevada for the link.

My colleagues dismiss the petition for review based on a nine-line motion, filed almost a month after this case was argued and submitted, which says nothing more than that petitioner has suddenly lost interest in the case. Granting the motion in such circumstances casts aside the time and effort of the 15-judge en banc panel, as well as the time and effort of the full court in considering whether to take the case en banc in the first place. It also threatens the integrity of our processes by inviting manipulation by parties unhappy with the questions at oral argument and fearful of the result they believe the court is going to reach. Worse still, by allowing counsel to dismiss the petition without requiring confirmation from the client that he wishes to abandon the petition for review, we put petitioner’s rights in jeopardy and leave the door open to future litigation as to whether counsel’s representations can bind the client.

I’ve always detected a sense among lawyers — sometimes explicitly stated, at least in private — that judges are always grateful for anything that clears up their dockets a little bit. Thus, we tend to assume a judicial bias in favor of any resolution short of final disposition on the merits — whether by voluntary dismissal of a case or appeal, settlement of a case, or even a stipulated reversal of a judgment on appeal. Not to be sycophantic here (besides, I have no reason to believe any judge has seen this blog), but I think this is somewhat cynical and does not give credit to the hard work of the judiciary.

UPDATE (10/19/07): Decision of the Day comments on the case with more detail and a focus on concerns that attorneys were gaming the system, as does California Appellate Report.  Appellate Law & Practice has somewhat less respect for Judge Kozinski’s concerns.

The Ninth appeared to be telling the California Supreme Court that its jurisprudence on the issue is, shall we say, less than crystal clear. I wrote:

Another thing I like about this request from the Ninth Circuit is that it doesn’t claim there are no California cases on point. It says the most relevant case on the issue is impossible to figure out:

We certify the above question to the Supreme Court of California for an authoritative construction of the most directly relevant opinion on the issue, People v. Glaze, 27 Cal. 3d 841 (1980).

In other words, “Please tell us what the heck you were trying to say in that mess (and in the seemingly inconsistent cases that followed).” But they asked it nicely.

Then the Supremes took their shot in an order denying the Ninth’s request for an answer to the certified question, doing so in language suggesting that the Supremes are shocked — shocked — that the Ninth can’t figure it out from the existing cases:

[The request from the Ninth Circuit] is denied. California law is clear that content-neutral time, place, and manner regulations affecting protected speech are subject to an intermediate standard of scrutiny. Currently, California law does not suggest that restrictions upon the hours that adult businesses may operate require review under any test other than the intermediate scrutiny standard applicable to other content-neutral regulations.

I’m sure nobody was really “taking shots” here. That’s reading between the lines on my part, and cynical to boot.

Anyway, when the Ninth takes up the case again, it applies the “intermediate scrutiny” standard and upholds the hours-of-operation restrictions. The adult bookstore failed to “cast direct doubt” on the negative secondary effects of the adult business that the county used to justify the restrictions, including . . . increased noise and traffic? That’s the same objection people raised around here when they wanted to build a Lowe’s home improvement store!

I got the link from Prawfsblawg. Who got it from GWU Law Professor Orin Kerr at The Volokh Conspiracy (who gives some especially good reasons to peruse them). Who got it from How Appealing. Who got it from . . . aw, who knows?

But what caught my eye immediately was the dissent from this denial of a rehearing en banc. Eight judges join Judge O’Scannlain’s dissent, which starts:

In a feat of interpretive creativity, the Court in this case has transformed a discretionary determination of an Immigration Judge (“IJ”) into a question of law, thereby claiming jurisdiction over a swath of immigration cases hitherto beyond our purview.

And later:

The panel . . . proceeded to engage in interpretive gymnastics based upon a manufactured constitutional conflict.

Finally:

[the panel decision] creates a split between our circuit and all seven other circuits to consider the issue . . . But even more troubling than this split, the panel’s decision defies the statutory text, unnecessarily creates a constitutional conundrum, and places within our jurisdiction an array of immigration appeals that Congress does not permit us to review.

Professor Martin at California Appellate Report equitably distributes political motives in the case.

It first notes the justification for not disclosing reasons for recusals:

Justices have traditionally declined to elaborate on why they’ve stepped aside. One reason: a legitimate concern that revealing the cause for a recusal could empower future litigants to manufacture conflicts — such as hiring the spouse or child of a justice as a lawyer on the case — to force the removal of a justice who appears philosophically hostile to their arguments.

It then argues that the most recent recusals of Justice Roberts and Justice Breyer from a pending securities suit were likely due to their ownership of stock in the parent corporation of a party.  Justice Roberts is since back on the case, likely because he sold his stock.

The editorial argues that since such financial stakes are eventually revealed in the justices’ annual financial disclosure statements, there is no harm in revealing stock ownership as a reason for recusal.  But it never explains how that translates into an argument for disclosing the reasons for all recusals.

Its more convincing point is that the lawyers in the case can generally figure out the reason for the recusal anyway, so why keep the public in the dark?

Thanks to ABA Journal for the link.

Technorati Tags: recusal, SCOTUS

[The report is] a summary of the judicial branch’s significant progress and challenges in improving court administration and equal access for all Californians. 

***

The report highlights the branch’s efforts, in cooperation with the legislative and executive branches of state government, to improve service to the public and describes key trends in court caseloads and workloads.

I’m not saying its bad, just . . . different.

Has anyone seen anything like this from a California judge?

Thanks to ElectricLawyer, who was on top of this months ago.

Instead, the title summarizes two of Nine Ideas for Improving the Administration of Justice offered by Los Angeles attorney Edwin B. Stegman in his guest column in the September 2007 California Bar Journal.  Specifically, Stegman suggests the following:

3.  We desperately need a CCP §170.6-type peremptory challenge of incompetent and unreasonable appellate justices and divisions.

***

7. Before oral argument, attorneys should be permitted to review research attorneys’ notes and appellate draft opinions. There is no advantage to secrecy. In some courts, research attorneys make the decisions. Sometimes they make mistakes. Litigators should have an opportunity to discover the mistakes and point them out to the judge. Furthermore, oral arguments would be more focused, saving time.

Let’s take these one at a time in the extended entry. . . .

PEREMPTORY CHALLENGES

What really strikes me about Stegman’s peremptory challenge suggestion is that he would allow a peremptory challenge to an entire division!  Stegman’s been practicing for more than 50 years — longer than I’ve been alive — so I imagine he has had some bitter experiences in that time.  Perhaps this suggestion arises from those experiences.  I don’t know.  I would have loved for Stegman to explain his reasons for this one.  I’m always up for a good “sea story.”

PRE-ARGUMENT REVIEW OF RESEARCH ATTORNEY NOTES AND DRAFT OPINIONS

As for getting access to research attorney notes and draft appellate opinions . . . I’d love to see this put forth as a formal proposal by the Judicial Council just to see the public comment it would get. 

I can see Stegman’s point about argument being better focused as a result.  But I suspect most appellate jurists would oppose this.  As a retired justice noted in the article I cited in this post, the motivation behind a question from the bench can be difficult, and in some cases impossible, to discern.  My suspicion is that justices like it this way because it gets a more “honest” answer from the advocate.

Stegman’s point about being able to address mistakes before argument seems like it could have at least one beneficial side effect.  It could reduce rehearing petitions by allowing parties to raise some issues — mistake of law, erroneous or omitted facts or issues — prior to the argument, giving the court a chance to correct itself without a petition for rehearing after issuance of its opinion.

One might use the availability of tentative opinions on trial court motions, including dispositive motions, to justify disclosure of draft appellate opinions.  But I think the viability of something like this at the appellate level depends a lot on the details.  I can’t imagine that research attorney notes will ever be fair game, but a draft opinion made available shortly before the hearing might be a proposal that could gain some momentum.

Overall, I’m agnostic on this suggestion because I haven’t had enough time to think about it and my opinion would vary depending on the details.  First thoughts from anyone?

We hold that Code of Civil Procedure section 2019.210 (formerly Code of Civil Procedure section 2019, subdivision (d)), which provides that discovery relating to a trade secret may not commence until the trade secret is identified with “reasonable particularity,” is not limited in its application to a cause of action under the Uniform Trade Secrets Act (UTSA) (Civ. Code, §§ 3426-3426.11), for misappropriation of the trade secret, but extends to any cause of action which relates to the trade secret. We also hold that where the plaintiff makes a showing that is reasonable, i.e. fair, proper, just, rational, the trade secret has been described with “reasonable particularity,” and is sufficient to permit discovery to commence.

The italicized holding is about as specific as the court can get, because the trade secret designation was under seal.  In footnote 2 of the opinion, the court states:

To avoid disclosure of the parties’ confidential information we are, in this publicly available opinion, purposefully vague in our descriptions of the claimed trade secrets, the trade secret designations, the expert witness declarations and other related documents.

The court comes up with a pretty good articulation of the standard for “reasonable particularity,” considering it is foreclosed from demonstrating specifically how the standard applies to the trade secrets before it.

Taking [Jordan v.] Duff & Phelps, a contracts/corporate case from the 7th Circuit featuring a heated disagreement between Judges Posner and Easterbrook, as his text, Ramseyer writes that it “shows the risk inherent in appointing judges too creative and independent for the job.”

Prawfsblawg quotes from the paper:

[J]udging is not a job for unconstrained, innovative minds.  Judges are government bureaucrats.  Their job is to be honest, to unravel a set of facts, to decide what law applies, and not to think too hard about it all. . . .

This is quite the proposition!

See the Prawfsblawg post for a much more detailed discussion and links to the paper.

You may recall my post about an ethics complaint brought against a Florida lawyer who posted highly negative comments about a judge on a local internet forum.

While a bill to split the nation’s largest federal appeals court lies dormant in Congress, that didn’t prevent grumbling at the opening of the 9th Circuit’s annual judicial conference over repeated efforts to divide the circuit.

There are several quotes from judges on their views — and fears — about a potential circuit split, including Chief Judge Schroeder’s reaction to the L.A. Times opinion piece arguing that the Ninth Circuit has a high reversal rate because its size makes it more likely that two “extremist” judges will be assigned to any given panel.  My coverage of the L.A. Times piece, with links to coverage by other blogs, is here.

Technorati Tags: Ninth Circuit

Professor Smith gives a recitation of past changes in the authorized number of justices, with very brief detail on why some of them were made, and concludes:

If the current five-man majority persists in thumbing its nose at popular values, the election of a Democratic president and Congress could provide a corrective. It requires only a majority vote in both houses to add a justice or two. Chief Justice John Roberts and his conservative colleagues might do well to bear in mind that the roll call of presidents who have used this option includes not just Roosevelt but also Adams, Jefferson, Jackson, Lincoln and Grant.

But as a commenter on the WSJ post notes about the piece (lots of comments there, by the way),

It’s a nice history lesson, but every change to the number of justices happened over 150 years ago, and both in times of true national upheaval–the new nation and then the civil war. Even the depression wasn’t sufficient for FDR to change the number.

I wonder if Professor Smith’s piece is a serious enough argument for SCOTUSBlog to chime in with something substantive. Right now, they only link to it in a “Round-Up” post, but you might want to check it out for its links to several other articles regarding distress over the Court’s direction.

Lots of discussion over at The Volokh Conspiracy, too, including this one:

Among a great many other questions, I was hoping [Smith] would explain why a series of controversial 6-5 decisions would be clearer or more persuasive than a series of controversial 5-4 decisions. But nope. Oh well.

Court packing could even become popular. Once the initial resistance is overcome, there will be more packing with each change of power as citizens not only get used to it but demand it as a perk of winning the last election. A hundred years from now, maybe we’ll see an article in the New York Times begin with “A bitterly divided U.S. Supreme Court, in a 76-75 decision . . .”

OK, that’s a little cynical.

I suspect there’s going to be a lot more posted about this.

UPDATE (7/27/07): And there is.

University of Wisconsin Law Professor Ann Althouse has lots to say and tons of comments from readers.

Prawfsblog has a few comments.

The Blog of Legal Times notes a sense of “buyer’s remorse” in the senate over the confirmation of Justice Alito and Chief Justice Roberts. Senator Specter is said to be examining their testimony before the Senate to see if their conduct on the bench squares with what they testified to as their views on stare decisis. According to BLT:

The review is designed to improve the confirmation hearing process, in particular what may be done to goose nominees into giving more substantive answers to questions. In recent years the hearings have largely become a process of avoidance, with nominees seeking to say as little as possible without scuttling their prospects for confirmation. Specter and fellow Judiciary Committee member Dick Durbin (D-Ill.) are searching for ways to make the hearings more probative.

The doctrine of stare decisis requires a trial court to follow an unambiguous published holding of the Court of Appeal, even if the trial court believes that the appellate opinion was erroneously decided. This, we had assumed, was fairly obvious to every trial court judge; that is, until now.

Judges are people, too.  They make honest mistakes all the time.  Indeed, my livelihood depends on it.

I guess that every once in a while the Court of Appeal decides that the trial judge needs something just a little bit more attention-getting than the typical, neutral-sounding opinion. 

On the merits, check out these posts at Decision of the Day and The Volokh Conspiracy.  For commentary on Judge Jacobs’s disdain for the dispute before the court, see Appellate Law & Practice or this other post at The Volokh Conspiracy.  As usual, The Volokh Conspiracy comments sections are worth checking out.

Do I think Judge Jacobs was a little flip in emphasizing that he hadn’t read the majority opinion?  Yes.  Clearly, Judge Jacobs has no patience for the dispute in this case.  But in reading his dissent, I didn’t get the feeling that he’d given short shrift to the case — it just appeared to me that he didn’t think it was worth the time he had to spend on it. 

That said, I wouldn’t want this to become a common practice.

UPDATE (7/15/07): It’s worth noting, perhaps, that some of the debate is distorted somewhat by misinformation. Judge Jacobs’s opinion concurs in part and dissents in part. Many of the angriest posts seem to presume he was dissenting only. That he concurs in part suggests that even if he did not read the opinion, he was very familiar with the arguments in the opinion.

UPDATE (7/16/07): The Wall Street Journal Law Blog has coverage today. And it looks like I overlooked some of the coverage from last Friday and over the weekend. Professor Bainbridge says not only that he thinks Judge Jacobs is being judged too harshly, but:

I know nothing about Chief Justice [sic] Jacobs, but on the basis of this opinion, I’ve decided to nominate him for some sort of judicial prize.

Overlawyered is on Professor Bainbride’s side, naturally.

Above the Law thinks Judge Jacobs has his priorities out of whack.

BeldarBlog has published an opus (in blogging terms, anyway – more than 4000 words, including both updates and the title) on this case. I haven’t made my way all the way through it yet, but I’ve read enough to know he generally agrees with Professor Bainbridge’s take. And he’s published a second post (another long one) in response to a comment on the original post left by Patterico.

Commenter “blake” at Professor Althouse’s post about the case speaks for many, I am sure, when he writes: “I can’t imagine not having the urge to do that twice a day were I judge.”

The complaint is a hideous sprawling mess, 40 pages in length with 221 paragraphs of allegations.  We have found it difficult and in many instances impossible to ascertain the nature of the charges. . . . [T]he defendants can hardly be blamed for wanting to strangle the monster in its crib.

The case is In re Ocwen Loan Servicing, LLC Mortgage Servicing Litigation, case no. 06-3132 (7th Cir., June 22, 2007).  Thanks to Legal Writing Prof Blog.

Above the Law had several posts following the progress of this case, which are together on this page.

This statement to a judge was made by (a) a newly minted, naive lawyer; (b) a renegade solo criminal defense attorney; (c) a criminal defendant; (d) a partner from a prestigious, nationally recognized, Chicago-based law firm.

Answer: (d).

The remark earned him an order to show cause as to why he should not be suspended from practice before the court and have his pro hac vice admission revoked.

See Above the Law for the full story.  Some commenters there actually take the judge to task.  There are also some reasonable explanations offered for the lawyer’s statement, suggesting that the judge misunderstood the comment.  But I don’t know if any of them are right.

UPDATE (5/31/07): Is it possible I show too much deference for authority? Carolyn Elefant of the My Shingle blog really made me think with this post taking the judge to task for sandbagging the lawyer and overreacting by issuing the OSC and copying every judge on the court. Unlike most of the snarky commenters at Above the Law, she explains her position. If you’re a solo, you may also want to go to her main page and scroll through some of her posts about the special burdens of solos when it comes to sanctions and ethics charges.

Technorati Tags: legal ethics

On Cervantes’s first appeal, the court reporter advised that a technical malfunction prevented her from transcribing the testimony of the sole prosecution witness. Nearly a year after his conviction, Cervantes moved for summary reversal and a retrial based on the absence of the transcript. The Court of Appeal denied the motion but remanded for the trial court to determine if a settled statement could be obtained.

At the hearing on the settled statement, held more than a year after conviction, the trial judge admitted having no recollection of the trial proceedings. The proffered settled statement was prepared almost entirely by the prosecutor with only nominal participation from appellate defense counsel, who had not participated at trial. Cervantes’ trial counsel had no input at all. He was deemed unavailable when appellate counsel told the court that he had left the public defender’s office. The trial court approved the settled statement.

It turned out that Cervantes’s trial counsel remained practicing in town after leaving the public defender’s office. The Court of Appeal, noting that Cervantes will be entitled to a new trial if a settled statement cannot be approved, remanded for a determination of whether a settled statement could now be prepared with the assistance of his newly located trial counsel.

Net result: More than two years after his conviction, Cervantes still doesn’t know if he will be appealing on the basis of a settled statement or will instead be entitled to a new trial.

Lessons for trial lawyers: The Court of Appeal will not grant new trials on the basis of unavailability of transcripts until efforts at procuring a settled statement are thoroughly exhausted. Determine the availability of your trial transcript immediately and keep track of persons important to the preparation of a settled statement — just in case. It turned out in this case that although Cervantes’s trial counsel had left the public defender’s office, he was still practicing locally — a little effort could have saved a lot of time.

As a side note, the unanimous opinion from our local division of the Second District Court of Appeal contains this gem of writing in the introduction:

“The trial judge has no recollection of the trial proceedings. Yet, he approves a settled statement. This is unsettling.”

That’s the kind of writing that keeps opinions from being boring, yet maintains the seriousness of the subject (unlike, in my view, this opinion). I wish I could write similar remarks. But such writing from an appellate justice is almost universally appreciated, while an attorney submitting a brief has to worry about insulting the seriousness of the court. If I really want to scratch that itch, I should work on getting appointed to the bench.

Thanks to The Electric Lawyer.

So it’s no surprise to me that a blog to discuss judicial performance has arisen in at least one jurisdiction. Kevin O’Keefe at Lexblog links to a Florida blog to which lawyers posted their opinions regarding judicial performance. Now an ethics complaint against a lawyer who posted highly negative comments about a judge is raising issues of professional ethics and freedom of speech. See O’Keefe’s post, and the links therein (to a newspaper article and to the blog itself), for details. Not all of the judges dislike it.

Actually, it seems like a wiki might be much better suited for this purpose. But no less dangerous.

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.

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.

Technorati Tags: Communications Decency Act Immunity, internet law, law and technology