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.

There’s No “E” Before “Mails” When it Comes to Triggering the Deadline to Appeal


Modern communication and the California Rules of Court collide in Citizens for Civic Accountability v. Town of Danville, case no. A121899 (1st Dist. Oct. 27, 2008), and the winner is . . . the rules! At issue: whether the e-mailing of a notice that a judgment has been filed, with a link to access a copy of the judgment, triggers the deadline to appeal under rule 8.104(a), California Rules of Court, which provides that a 60-day deadline to appeal is triggered when the clerk “mails” a notice of entry of judgment or a file-stamped copy of the judgment.

The trial court designated the case complex litigation and ordered compliance with the court’s Electronic Case Filing Standing Order, which provided that orders filed by the court would be served electronically only, either by e-mail or through an electronic filing service provider (in this case, LexisNexis File & Serve). The order granting in part and denying in part the petition for writ of mandate was served as follows:

On April 1, 2008, LexisNexis File & Serve sent the parties a message by electronic transmission (an e-mail) stating, “You are being served documents that have been electronically submitted in [Citizens for Public Accountability v. Town of Danville] through LexisNexis File & Serve.” The e-mail identified the document as a Judgment on Petition for Writ of Mandate, and stated that it had been authorized for filing on April 1, 2008. To view the document, the parties had to visit a LexisNexis File & Serve website, sign in, and open a document file. The document so accessed bore an “electronically filed” file stamp dated April 1, 2008.

Respondents moved to dismiss the appeal on the ground that the notice of appeal was filed more than 60 days after that electronic service. The court of appeal denies he motion, holding that “the 60-day appeal period in California Rules of Court, rule 8.104(a)(1) is triggered only by the mailing of a judgment by the US Postal Service.” (Emphasis added.) Keys to this conclusion: resolution of ambiguities in the rules should be construed to preserve the right to appeal, statutory distinctions between mailing and other forms of service indicate that “mail” means the U.S. Postal Service.

Chutzpah on Appeal

Chutzpah” is about the most polite word I could come up with for the appellant’s audacity in United States v. Moreland,  case no. 05-30541 (9th Cir., Dec. 13, 2007).

Moreland apparently swindled people out of $73 million, so I’m going to assume he had a little bit of money, legitimately earned, set aside for his defense.  Yet he fought tooth and nail to proceed pro se, which is where all his problems started.

The decision is covered very well, and in some detail, in this post at Decision of the Day, which begins:

In my line of work, I see all kinds of appellate arguments: brilliantly creative, colossally stupid, and everything in between. I enjoy the wacky ones the most, because they tend to inspire spirited opinions, which in turn gives me something interesting to blog about. But occasionally, an appellant makes a wacky argument that really gets under my skin. The Ninth Circuit dealt with three such examples in a decision issued yesterday.

Worthy reading.  And it’s worth noting that Moreland was represented on appeal.  I have to wonder if his lawyers winced as they filed the brief.

Using the Court of Appeals as a Crystal Ball

“Don’t do it” is the friendly advice from the Ninth in Global Horizons, Inc. v. U. S. Dept. of Labor, case no. 07-15116 (9th Cir. Dec. 13, 2007).  At the  end of its opinion affirming the denial of a preliminary injunction, the court notes that the appellant, Global Horizons, would have been better off pressing on with its permanent injunction claim while the appeal was pending rather than dragging its feet in the district court while hoping to get the Ninth Circuit’s views on the merits of the case:

Finally, we recognize that in the eleven months since Global Horizons filed the present appeal, the company has taken very few steps to move its application for permanent injunction forward in the district court. . . .  Twenty-five years ago in Sports Form, we admonished parties for appealing a preliminary injunction “in order to ascertain the views of the appellate court on the merits of the litigation.” 686 F.2d at 753. We repeat our concern. Because of our limited scope of review and the paucity of the factual record on a preliminary injunction application, our disposition “may provide little guidance as to the appropriate disposition on the merits” and will often “result in unnecessary delay to the parties and inefficient use of judicial resources.” Id. Given the purported urgency of Global Horizons’ claims, the company would have been better served to pursue aggressively its permanent injunction claim in the district court, rather than apparently awaiting the outcome of this appeal.

Follow the Rules – A Lesson from the Ninth

Today’s decision in Sekiya v. Gates, case no. 06-15887 (9th Cir. November 29, 2007) is a reminder that the dismissal sanction is lurking out there for any parties to an appeal that fail to follow the rules. The Ninth finds the appellant’s opening brief so deficient that it is “compelled to strike it in its entirety and dismiss the appeal.”

The brief wasn’t merely “deficient.” It sounds like it did not resemble a brief at all.

The brief fails to provide the applicable standard of review, and makes virtually no legal arguments. Furthermore, it lacks a table of contents, a table of authorities, citations to authority, and accurate citations to the record.

You’re thinking, “Well, that’s what you get for proceeding in propria persona,” right? Think again. Appellant had counsel. Yet the analysis and citation to evidence (it was an appeal from summary judgment) were also deficient:

Bare assertions and lists of facts unaccompanied by analysis and completely devoid of caselaw fall far short of the requirement that counsel present “appellant’s contentions and the reasons for them.”

Despite the court’s assertion that it was publishing the case “as a reminder that material breaches of our rules undermine the administration of justice and cannot be tolerated,” it nonetheless conducts an independent review of the record in recognition of “the harshness of this rule, especially as its application could, if unwisely applied, leave a meritorious appellant without a legal remedy when the fault lies solely with his or her counsel.”

With this concern in mind, and despite the abject deficiency of the brief, we have reviewed Sekiya’s case on the merits based on a review of the district court record, and we are satisfied that the district court did not err.  Sekiya, however, is not “entitled to have us expatiate on our reasons for finding [her] case unmeritorious.” [Citation.]

Maybe the part I liked best was this quote:

In order to give fair consideration to those who call upon us for justice, we must insist that parties not clog the system by presenting us with a slubby mass of words rather than a true brief. [Citation.]

I think if I were a legal writing professor, I might talk about this case with my students and keep the phrase “slubby mass of words” handy.

UPDATE (12/5/07):  Lowering the Bar coins the term “Slubby Mass Rule” and delves into the etymology of “slubby.”

Consumer Attorneys Sue Supreme Court over Case Publication Rules

Newport Beach personal injury firm Bisnar | Chase announced on its California Injury Blog that it has filed suit against the California Supreme Court and a district of the Court of Appeal. While not 100% clear from the post, it appears that the firm is representing a personal injury client who alleges his due process and equal protection rights were violated by the Court of Appeal’s failure to publish its decision reversing a judgment after jury verdict in his favor against Southern California Edison. Specifically, it appears the Court of Appeal — presuming I tracked down the right decision on Westlaw — reversed the award because it found as a matter of law that the Edison employee who injured the plaintiff was not acting within the scope of her employment at the time (currently responsible – Orlando attorney Harvey Cohen).

Writes John Bisnar in the post:

When an appellate court issues a decision like that, it used to be a traditional expectation to express that in a written opinion, elaborating the reasoning behind that decision. Unfortunately, most recent rules imposed by the State Supreme Court have changed that expectation. Now, only opinions that “make law” are published.

Actually, the standards for publication have recently been liberalized. Changes to California Rule of Court 8.1105(c) that took effect last April were, according to this December 2006 press release from the Judicial Council, intended to:

clarify the criteria for publication for both justices and attorneys, better ensure the publication of all those opinions that may assist in the reasoned and orderly development of the law, and improve public confidence in the publication process.

The Bisnar | Chase blog post does not specify the actual causes of action pleaded in the complaint or the relief sought. If I can get my hands on a copy of the complaint, I’ll fill you in.

UPDATE (10/19/07): Welcome to everyone following the link from Appellate Law & Practice, and thanks to “S. COTUS” for the link.

I didn’t realize when I put up this post that Howard Bashman pointed out this lawsuit more than a week ago at How Appealing. When he saw my post, he was kind enough to e-mail a link to news coverage by McClatchy that explains at least part of the relief sought by the plaintiff. Before I was able to update this post with information from the article, I saw that the suit is the subject of Bashman’s column this week. He bases his analysis, however, on the McClatchy piece and the attorneys’ blog post, not the actual complaint.

Now I’m really interested in seeing this complaint. I’ll check its availability on PACER over the weekend. Look for another update before Monday.

UPDATE (10/20/07): This is frustrating. I found the case on PACER for the U.S. District Court for the Northern District of Califronia: Hild v. California Supreme Court, case no. 3:07-cv-05107-TEH, assigned to District Judge Thelton E. Henderson. Magistrate Judge Joseph C. Spero recused himself. The docket sheet describes the case as one for declaratory judgment.

That’s the best I can do from the information on PACER, because the complaint is not downloadable. (This is a pet gripe of mine. The documents in any given PACER docket that are downloadable seem completely random. Documents critical to understanding the case, like a complaint, are sometimes not downloadable, while documents relevant to nothing but scheduling are. Does anybody know if this is deliberate, or what PACER’s policy is?)

In any event, the McClatchy piece and Bashman’s column (definitely worth a read) together suggest that the plaintiff is seeking publication of his appellate court decision in order to increase the odds of Supreme Court review and perhaps even a right to have the appeal reheard on new briefs that include citations to unpublished cases and treating those cases as precedential. But I have to say that requires some reading between the lines and may not be accurate at all.

I’ve requested a copy of the complaint from Bisnar | Chase. If anyone knows somebody who may have a copy of the complaint — perhaps a reporter at the Daily Journal? — I’d appreciate it if you would e-mail me contact information for that person. Surely, there must have been an article in the Daily Journal about this case. I don’t have an account with them, so I would appreciate it if someone could e-mail me a link to news coverage in the Daily Journal — or any other source for that matter.

UPDATE (10/22/07): A colleague was kind enough to send me the October 5 Daily Journal article about this lawsuit.  About the only new thing I learned from it is that the suit apparently claims that under the liberalized guidelines I mentioned in the original post, the Court of Appeal should have published the Hild decision because it “‘dramatically broke new ground’ holding the facts of the unintentional accident were ‘indistinguishable as a matter of law’ from rape/sexual battery and intentional tort cases.”  (That quote is from the article, apparently quoting from the complaint.)

This will be one to watch, but absent new developments, I don’t think I’ll be adding anything.