• Blogging

    Sticky post (newer posts below this one): OK, who the heck hacked my blog?

    I just got a client inquiry based on a 2008 post, so I looked at the post, and . . . YIKES! I found someone had hacked my blog and inserted advertisements into the post! The advertising links are gone from that post now, and I’ll be changing my a password as soon as I finish with this post, but it looks like I now have to look through my other 800+ blog posts for signs of similar shenanigans. If you run across any odd links anywhere on the blog, please notify me at gregATgregmaylaw.com (replace AT with @) and tell me which post they appear in. (It would be…

  • Blogroll,  California Procedure,  Discovery

    Blogroll addition: Resolving Discovery Disputes

    I think you’d have a hard time finding any attorney who enjoys the process of written discovery. The process is unpleasant, especially when dealing with a stubborn party or counsel. The costs can be staggering. It gets even more unpleasant when disputes arise. Depositions (as opposed to written discovery) can be fun, but the fun goes away once a dispute arises. You may be able to ease the pain somewhat by consulting the Resolving Discovery Disputes blog run by Foster City attorney Katherine Gallo. I ran across it the other day and, after reading the post I had found in my internet search, kept reading post after post, finding them…

  • Appellate Jurisdiction,  Appellate Procedure,  Notice of Appeal

    Supreme Court finds attorney’s notice of appeal from attorney sanctions award sufficient if it names only the client as the appellant

    A lawyer has a right to appeal a sanctions award against the lawyer even if that lawyer is not a party to the underlying lawsuit. It is equally undisputed that a timely notice of appeal is a jurisdictional requirement. So what happens when a lawyer who wishes to appeal from an order directing the lawyer to pay monetary sanctions files a notice of appeal listing only the lawyer’s client as the appellant? In K.J. v. Los Angeles Unified School District (Jan. 30, 2020, S241057), ___ P.3d.___, the California Supreme Court holds that such a notice of appeal is adequate to confer appellate jurisdiction where the respondent is not misled regarding the nature of the appeal: [W]hen it is clear from…

  • Legal Writing,  Uncategorized

    “Quoth the Judge, ‘Nevermore'”

    If you have ever had the itch to write something like the title of this post into a brief, you might enjoy “What Lawyers Can Learn from Edgar Allan Poe,” one of the latest legal papers available from the Social Science Research Network. Will it really teach you how to write a brief that resembles a horror story? No. But the abstract does suggest it will teach you how to employ the elements relied on by Poe to write successfully. Here’s the abstract: Treat yourself to a spine-tingling Edgar Allan Poe sensation by reading about the synergy between stories of horror and legal writing. Poe defined a short-story writing technique…

  • Announcements

    I’m back!

    Or, should I say, the blog is back. I’m not sure how much blogging I will do in the near future, but at least the old posts are up again after an extended outage. The fix was really simple, but it took three tech support guys at my hosting provider, over the course of a week, to figure out that simple solution. My apologies to my regular readers. That means Ben and . . . anyone? Anyone?

  • California Court of Appeal,  California Courts,  e-Filing,  Legal Technology

    TrueFiling comes to the Second District Court of Appeal

    Perhaps the title of this post should be the other way around: The Second District Court of Appeal comes to TrueFiling. Although the The Second District has had e-filing for some document sin place for several years, it appears to be the last appellate court in the state to embrace e-filing of everything via TrueFiling. With the upgrade come some new formatting requirements that were previously only suggestions. Electronically filed documents must now include electronic bookmarks to “to each heading, subheading and component of the document, such as the table of contents, table of authorities, petition, verification, points and authorities, declaration, certificate of word count, certificate of interested entities or persons, and…

  • California Supreme Court,  e-Filing,  Legal Technology

    Mandatory e-filing in the California Supreme Court is imminent – learn the rules!

    The California Supreme Court adopted voluntary e-filing this summer, but e-filing will become mandatory on September 1, 2017. The court uses the TrueFiling system, which I have found to be rather user-friendly. The Supreme Court’s e-filing rules are available in PDF format on the court’s website, and they are extensive. Some highlights: [Added 9/6/17: do not rely on this summary to ensure your compliance with the rules. Reference the rules on the court’s website, which may change form time to time without such changes being noted in this blog post.] ?E-filing becomes mandatory on September 1, 2017, even for cases initiated prior to that date. (Rule 3(b).) ?As in many other courts, self-represented litigants are exempted from mandatory e-filing.…

  • e-Filing,  Humor,  Legal Humor,  Legal Technology

    How flexible is that midnight electronic filing deadline in federal court?

    When I was a young lawyer, my mentor told me, “Practice law as if the rules will always be strictly enforced against you but will never be strictly enforced against the adverse party.” Wise words. Last week I posted about a party that applied for a 15-minute extension of time to file its documents with the federal district court in Ohio because of some technical difficulties it encountered with the electronic filing. In doing so, it lived out the first half of my mentor’s adage, as it did not assume that it would get a break of even 15 minutes without explicitly requesting such relief. In Hyperphrase Technologies, LLC, et al. v. Microsoft Corporation, a patent infringement case in…

  • Briefing,  Publication/Depublication

    Should a respondent always move to strike a defective appellant’s opening brief?

    A brief must “[s]tate each point under a separate heading or subheading summarizing the point, and support each point by argument and, if possible, by citation of authority.” (Cal. Rules of Court, rule 8.204(a)(1)(B).) A party may move to strike the adverse party’s brief if it fails to comply with this or other requirements of rule 8.204. (Rule 8.204(e)(2).) A leading practice guide advocates that a respondent should immediately file a motion to strike an appellant’s opening brief, that is “so defective that it appears likely the appellate court will order it stricken in whole or in part [.]” (Eisenberg, Cal. Prac. Guide: Civil Appeals & Writs (The Rutter Group…

  • e-Filing,  Legal Technology

    The 15-minute filing extension, brought to you by the era of midnight electronic filing deadlines

    When I was in law school, my wife was an assistant to a department head in an environmental consulting firm. Frequently, when I asked her what kind of day she’d had at work, she would respond that the scientists had made her day nuts by working on a project proposal at the last minute, forcing  the support staff to scramble like mad to make the FedEx deadline (usually 5 p.m. for those of us on the west coast). After hearing this a lot, I asked — with great naivete — “Has anyone ever considered getting the project done before the last minute?” Then I got to my Big Law firm, and saw…

  • Appellate Jurisdiction,  Appellate Procedure

    Long-derided Clemmer v. Hartford Insurance Co. clarified by Supreme Court: an order denying a motion to vacate under Code of Civil Procedure section 663 is appealable

    In 2007, I wrote about the questionable rule of Clemmer v. Hartford Insurance Co. (1978) 28 Cal.3d 865, which concluded that an order denying a motion to vacate made under Code of Civil Procedure section 663 (a “section 663 motion to vacate”) is not appealable: Probably no Supreme Court opinion has been more ignored by the Courts of Appeal than Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865. In Clemmer, the Supreme Court concluded, without explanation, that an order denying a motion made pursuant to Code of Civil Procedure section 663 to vacate the judgment and enter a new judgment is not appealable and dismissed the appeal. Because it…

  • Humor,  Legal Writing

    A light-hearted Friday post: what is the standard of music on appeal?

    I wrote last year about In re Christopher B., case no. C077467 (3rd Dist. Sept. 28, 2015), a cautionary tale about a trial court’s “clarification” of its order (read: “void modification for lack of jurisdiction”). Justice Butz’s concurring opinion opened with this sentence: “With apologies to Dolly Parton, here I go again, concurring with myself.” I like it when judges write colloquially, but I think I would have used a different musical reference if I were in Justice Butz’s place: What can I say? I loved the 80s!

  • Criminal Justice Reform,  Habeas Corpus,  Judges,  Legal Technology

    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…

  • Legal Technology

    Will appeals lawyers be replaced by computers?

    Technology has been displacing low-wage and less-skilled workers for a long time. Is it time for white collar professionals – including lawyers – to fear they are next? At  The American Interest blog: “Venture capital money keeps flowing to promising new tech companies that are working to automate many of the routine tasks conducted highly-paid 20-somethings at big city corporate law firms.” After noting that professionals may soon feel the squeeze from technology that low-wage workers have long endured, the pot continues, “Big law firms are especially overdue for disruption … The next stage of the information revolution may end up looking more egalitarian than the last” (see the difference with…

  • Announcements,  California Courts,  e-Filing,  Legal Technology

    Second District Court of Appeal to implement TrueFiling e-filing system in late 2016

    According to a notice I received today from the California Appellate Project: The clerk of the 2nd District Court of Appeal has asked us to inform the panel that True Filing will be available in this district beginning in November.  For two months, November and December, True Filing will coexist with the present eFiling system presently being used in the district.  The choice of which to use will be yours.  Then, in January, the present eFiling system will disappear, and everyone will be required to use True Filing.  Those of you already working in other districts with True Filing will definitely have a leg up on the rest of us.…

  • Announcements

    The 2015 edition of the California Litigation Review is Out

    The 2015 edition of the California Litigation Review hit my mailbox yesterday. It is published by the Litigation Section of the California State Bar and it has some terrific coverage of appeals and writs developments last year . . . and I don’t say that just because the vast majority of the cases examined in it were covered here as they happened, including: Jameson v. Desta (2015) 24 Cal.App.4th 491 (indigent plaintiff with fee waiver unable to afford court reporter still held limited in appellate argument by absence of transcript); Hewlett-Packard Co. v. Oracle Corp. (2015) 239 Cal.App.4th 1174 (in which the court offered some friendly advice to the legislature for modification of…

  • California Supreme Court,  Death Penalty

    Will a death penalty initiative make it easier to obtain Supreme Court review of your civil case?

    Death penalty cases can be automatically appealed to the Supreme Court, but a mere civil litigant has to ask the supreme court — convince it, really — to review its case. The odds are terrible; only about 1 in 25 petitions for review succeeds. Those odds may be going up a little after this year. For the 2014-2015 term, death penalty cases made up nearly 18% of the court’s workload (13 death penalty decisions out of 73 majority opinions). What if all those death penalty cases went away? Would the court be able to take on more cases? It’s quite possible, according to an article by Ben Feuer and Ann-Rose Mathieson in he 2015 edition…

  • California Courts,  California Supreme Court

    Insight into the Supreme Court’s decisions on whether to hear cases

    The Los Angeles Times has a story today on Justice Goodwin Liu, or, more particularly, on how his two recent lengthy dissents from orders denying review give some insight into what the court’s reasoning was. Usually, an order denying review is quite terse and gives no clue as to why the court reached its decision not to grant review. Justice Liu’s recent dissents, according to the article, shed some insight on the decision-making in those cases, but I’m afraid the article doesn’t do very well at explaining how. The passages it cites from the dissents demonstrate why Justice Liu was in favor of granting review by showing what he was thinking, but…

  • Legal Research,  Legal Technology,  Legal Writing

    Does Internet technology influence the way lawyers and judges think? Should it?

    The answer to both questions in the title of this post is “no,” judging from this abstract of a paper by Michael Whiteman, Associate Dean for law Library Services & Information Technology at Northern Kentucky University – Salmon P. Chase College of Law, titled Appellate Jurisdiction in the Internet Age: A close examination of the citation practices of the United States Supreme Court and the California Supreme Court from the twentieth and twenty-first centuries reveals that appellate jurisprudence in the Internet age closely resembles that of the pre-Internet age. These findings, coupled with the continued criticism of legal researchers in the Internet age, call for a retrenchment in training future lawyers in…

  • Appellate Procedure,  Relief from Default

    The patience of the Court of Appeal has its limits

    I wrote the other day about one aspect of Younessi v. Woolf, case no. G051034 (4th Dis. Feb. 16, 2016) (its illustration of the rule that a court of appeal may affirm on an alternate ground supported by the record), but there is a second lesson to glean from the case, regarding the limits of the appellate courts’ patience with counsel’s untimely submissions. In general, deadlines for appellate briefs are easily extended. One usually sees the limits of an appellate court’s patience in an order granting an extension, with the admonition NO FURTHER EXTENSIONS. Even that may not be the end of the court’s patience. If you miss that deadline, there’s always California Rules…

  • California Procedure,  Default,  Presumptions on Appeal

    Affirming on appeal on an alternate ground – the rule as applied to section 473(b) motions for relief

    Sometimes, the trial judge’s reasoning underlying a judgment is so obviously wrong that it seems to present a “slam dunk” appeal. But the rules of appellate review favor the judgment below, and that slam dunk (really, there is no such thing on appeal) can turn out to be a miss. The appellants in Younessi v. Woolf, case no. G051034 (4th Dis. Feb. 16, 2016) learned this the hard way.  The appellants were defendants who successfully moved for an entry of dismissal after the plaintiff failed to file an amended complaint following an order sustaining demurrers with leave to amend. The plaintiff filed a motion under Code of Civil Procedure section 473(b) to set aside the…

  • Legal Writing,  Stare Decisis

    The twists and turns of precedent

    Lawyers, and especially appellate lawyers, talk about “precedent” all the time, but do we regularly consider the rationale behind the rules of precedent and stare decisis? Mary Whisner does. Whisner is a reference librarian at the University of Washington College of Law, and sets forth some of her views in a paper called Exploring Precedent, brought to us courtesy of the Legal Writing Institute and the Social Science Research Network. Here’s the abstract: Legal researchers have many powerful tools for finding cases: Full-text searching with different interfaces from different providers, annotated statutes, digests, and a wide variety of secondary sources. But there are areas where even experienced researchers are puzzled: When will…

  • Criminal Procedure,  Prop 47 Reductions

    “Petty Theft Auto” just doesn’t have the same ring to it

    Enthusiasts of the “Grand Theft Auto” video game might think that “petty theft auto” sounds rather wimpy, but to a felon car thief seeking a sentence reduction under Proposition 47, “petty theft auto” sounds pretty good after the decision in People v. Ortiz, case no. H042062 (6th Dist., Jan. 8, 2016), Prop 47, adopted by the voters in 2014, reduced certain drug and theft offenses to misdemeanors and allowed those previously sentenced for those crimes as felonies to petition for resentencing if the crime would have been a misdemeanor if Prop 47 had been in effect. In Ortiz, the statute violated by the defendant was Vehicle Code section 10851, subdivision (a), which reads in part: Any person who…

  • Stare Decisis

    To the Court of Appeal, there is no such thing as a “wrongly decided” Supreme Court case

    Last week, I wrote about Miranda v. Anderson Enterprises, Inc., case no. A140328 (1st Dist., Oct. 15, 2015), describing how the appellant there benefited from a Supreme Court decision (Iskanian) that came out after the judgment from which the appellant appealed, and which so squarely addressed the issue on appeal that the Court of Appeal spent only a paragraph on its substantive discussion of the case. Given that controlling authority and the rules of stare decisis, under which a California Supreme Court opinion binds all lower courts in the state, what could the respondent — or any similarly situated respondent — do? First, a respondent can look for ways to challenge the appealability of the judgment, as the Miranda respondent…

  • Appellate Procedure,  Record on Appeal

    The lack of a reporter’s transcript can kill your appeal

    Jameson v. Desta, case no. D066793 (4th Dist. Oct. 20, 2015) is a grim reminder of the impact made by the court’s budget crisis, which resulted in the loss of many court-employed court reporters, requiring that parties provide their own court reporters for trial at their expense. The trial in this case went unreported, and that was enough to keep the plaintiff from prevailing on appeal. But before I get to how that came about, let me briefly describe the history of the case, for it makes the result all that much more heartbreaking for the plaintiff. Plaintiff sued a prison doctor for malpractice. The doctor obtained a judgment on procedural grounds, plaintiff appealed,…

  • Briefing,  California Courts,  Legal Research,  Legal Writing

    It is important to keep up with the law while your appeal is pending

    Most lawyers I know — at both the trial level and the appellate level — keep up with the daily “advance sheets,” which provide a brief summary of Supreme Court and Court of Appeal decisions published the day before. It is an important habit, because you never know when a great decision for your pending case is going to come up. For a great example, see Miranda v. Anderson Enterprises, Inc., case no. A140328 (1st Dist., Oct. 15, 2015), where the plaintiff/appellant gained the benefit of a Supreme Court decision that came out while his appeal was pending. The Supreme Court case, Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th 348, required reversal of the judgment that…

  • Appellate Jurisdiction,  Appellate Procedure,  Criminal Procedure,  Jurisdiction,  Prop 47 Reductions,  Wende Review

    Third District Court of Appeal creates a “quagmire” regarding Prop 47 sentence reductions

    You don’t have to take my word for it. The court uses the word “quagmire” in yesterday’s decision in People v. Scarbrough, case no. C075414 (3d. Dist. Sept. 29, 2015), in which it holds that a trial court lacks jurisdiction to recall and reduce sentences under Proposition 47 when the judgment for those crimes is on appeal. First, a brief reminder of what the California electorate voted into law last November. Prop 47 reclassifies certain crimes from felonies to misdemeanors and provides that persons convicted of felonies that are now classified as misdemeanors may “petition for a recall of sentence” to request resentencing under the new standards. You can imagine there are quite…

  • Criminal Procedure,  Dismissal (Criminal),  Jurisdiction

    The implications on appeal of “clarified” trial court orders

    It drives me crazy when an adverse party asks the trial court to “clarify” a recent ruling. Too often, such a request is not a request for clarification at all, but instead an effort to expand the scope of the order or otherwise change its meaning. Funny how these requests for “clarification” are brought up after an attorney realizes he neglected to make an argument, ask for a specific form of relief, or prejudiced his client’s interest by an admission in court. Such was the case in In re Christopher B., case no. C077467 (3rd Dist. Sept. 28, 2015), a “Murphy conservatorship” proceeding. (Welf. &  Inst. Code, §§ 5000, et seq., 5008, subd. (h)(1)(B), 5361;…

  • Appeals,  Briefing,  Strategy

    The kitchen sink has no place on appeal

    We’ve all heard of doctors lamenting the need to order lots of tests for the most mundane symptoms in order to protect themselves from malpractice lawsuits. Are lawyers exhibiting equivalent behavior? Last week, a post at the Lawyerist blog (Want To Destroy Your Case? Throw In The Kitchen Sink.) featured a federal district court decision adopting the recommendations of the magistrate judge to order sanctions all around in a sexual harassment lawsuit — i.e., all of the attorneys on both sides had monetary sanctions imposed against them. On the plaintiff’s side, the attorneys were sanctioned for what Lawyerist called “evidence-free sexual harassment and retaliation allegations.” On the defense side, the attorneys representing the…

  • Legal Writing

    Language help for everyone, not just lawyers

    In his latest book, The Sense of Style — described by one columnist as “a modern version of Strunk and White’s classic The Elements of Style, but one based on linguistics and updated for the 21st century” — Harvard cognitive scientist and linguist Steven Pinker explores the most common words and phrases that people stumble over. My favorite in the list (emphasis and brackets in original): Irregardless is not a word but a portmanteau of regardless and irrespective. [Note: Pinker acknowledges that certain schools of thought regard “irregardless” as simply non-standard, but he insists it should not even be granted that.] Correct: Regardless of how you feel, it’s objectively the wrong decision. / Everyone gets a…