It sounds crazy in the abstract, not so much in the context of the case decided in the Fifth District of the California Court of Appeal, El Dorado Meat Co. v. Yosemite Meat and Locker Service, Inc., ___ Cal.Rptr.3d ___, case no. F049334 (May 4, 2007). The court characterized the action as a “complex suit” in which plaintiff alleged a variety of business torts including antitrust, RICO and unfair competition claims. The single exhibit was actually “a 37-page document containing charts and graphs that were projected on a screen during trial” and was prepared from 160,000 pages of business and financial records produced by the parties in discovery. The costs…
-
-
California Notice of Appeal May be Filed on Behalf of Trust by Non-Attorney Trustee
The Second District of the California Court of Appeal holds that a trustee may sign and file a notice of appeal on behalf of the trust even though the trustee may not represent the trust in court. Indyway Investment v. Cooper, case no. B192944 (April 24, 2007). The opinion first explains the rationale for why a trust may not appear in propria persona by a non-attorney trustee, then provides a range of decisions in which notices of appeal were filed by non-attorney representatives and found valid based on a recognized “distinction between the capacity of a person acting in propria persona to sign and file a notice of appeal and…
-
Research Success Stories
If you’re like me, you enjoy doing research. But would you enjoy poring through 40 years of legislative committee reports? Professor Colleen Barger at The Legal Writing Prof Blog summarizes the experience of an attorney who did just that. You can read that attorney’s account — he found the proverbial needle in a haystack — as well as other research success stories, at the ABA Journal eReport. Technorati Tags: legal research
-
Can Text Justification Hurt Your Case?
That may sound like a stretch, but I have never liked full text justification in briefs, and now New Orleans appellate attorney Raymond Ward of the (new) legal writer blog links in this post to an article about the difficulty of reading fully justified text created on a word processor. As the linked article at Adams Drafting notes: Does justified text have anything going for it for purposes of word-processed documents? Well, its defenders will tell you that it looks “professional.” But it’s a phony professionalism, in that it comes at the expense of readability, which should be the first priority of any kind of typesetting, including word processing. The…
-
New FRAP and Ninth Circuit Rules Available
The Ninth Circuit website has posted the latest version (May 2007) of the Federal Rules of Appellate Procedure and Local Circuit Rules. They can be downloaded here. Maybe I shouldn’t look a gift horse in the mouth, but it would be nice if the PDF file had internal links to make it a little easier to jump from one rule to another referenced within it, or from the table of contents to the listed rule. But this PDF file is a nice resource nonetheless.
-
Technorati Claim Post
Purely administrative stuff here, folks. In 1979’s The Jerk, Steve Martin’s character, Navin Johnson, sees his name in the phone book for the first time and exclaims, “This is the kind of publicity that gets people noticed!” Well, that’s what they say today about Technorati and blogs. So here’s my post for the Technorati spiders to claim my blog and send me on the way to internet fame . . . Technorati Profile Here we go! Hold on!
-
Rules Changes? What Rules Changes?
The California Rules of Court were reorganized and renumbered effective January 1, 2007. Yet last night, a superior court judge from a neighboring county told me that approximately half of the memoranda that cross his desk still use the outdated numbering scheme. He blames it partly on a “cut and paste” approach to brief writing. Whether it’s from cutting and pasting or not, the continued reference to old rule numbering – more than four months after the new numbering took effect – is very revealing about the lack of cite-checking being done by lawyers and their paralegals. Alarmingly so. Or are they doing their cite-checking, but using outdated code books…
-
Is it Futile to Cite Federal District Court Opinions? (Updated)
At How Appealing, Howard Bashman gives us this post about citing to district court opinions. He quotes a Seventh Circuit opinion decided yesterday that admonishes lawyers not to cite district court opinions, because they “lack authoritative effect,” and instead to incorporate “into their own presentations” whatever persuasive rationale is offered in the opinion. Bashman appears to doubt lawyers will heed this advice: The reality is that advocates will always regard a legal proposition that a judge has accepted — even if only a “lowly” federal district judge — as potentially more worthy of another court’s credence than a proposition for which no authority is cited. I think he’s right. And…
-
California: Pay for Missed Breaks is a Wage Rather than a Penalty for Statute of Limitations Purposes (Updated)
A second important holding out of Murphy v. Kenneth Cole Productions, Inc., __ Cal.4th ___, 56 Cal.Rptr.3d 880, 155 P.3d 284 (April 16, 2007), is that the “one additional hour of pay” provided for in Labor Code section 226.7 constitutes a wage or premium pay, a claim for which is subject to a three-year statute of limitations (Code Civ. Proc., § 338) rather than a penalty subject to a one-year statute of limitations (Code Civ. Proc., § 340). The court finds the language of section 226.7 ambiguous and thus sets out on a lengthy and comprehensive analysis of: extrinsic sources, such as the ostensible objectives to be achieved by the…
-
De Novo Appeal from California Labor Commissioner “Berman Hearing” Can Include New Claims
An employee may bring a wage claim in superior court or before the Labor Commissioner. Where he does the latter, a “Berman hearing” is held and “the parties may seek review [of the labor commission order] by filing an appeal to the superior court, where the appeal shall be heard de novo.” Labor Code § 98.2(a). In Murphy v. Kenneth Cole Productions, Inc., __ Cal.4th ___, 56 Cal.Rptr.3d 880, 155 P.3d 284 (April 16, 2007), the California Supreme Court unanimously holds that in a section 98.2 de novo appeal from a Berman order, the superior court may also hear claims not raised by the employee in the Berman proceedings. Taking…
-
California Court Upholds Deadly Weapon Sentencing Enhancement for Animal Cruelty Conviction
Division Four of the Second District Court of Appeal has just upheld a deadly weapon sentencing enhancement under Penal Code section 12022(b)(1) for a conviction of animal cruelty under Penal Code section 597(a). The court rejected the defendant’s contention that a deadly weapon enhancement could only apply to crimes against humans. Animal cruelty under section 597(a) is a felony, and section 12022(b)(1) only requires that the deadly or dangerous weapon have been used “in the commission of a felony or attempted felony.” In this matter of statutory construction, the court stated that “If we were to follow appellant’s interpretation, we would be required to insert the words ‘against a person’…
-
California Joins Jurisdictions Holding that Injunction Against Speech Already Proven at Trial to be Defamatory is Constitutional
In a rather comprehensive analysis of the constitutional doctrine of prior restraint, the California Supreme Court holds in Balboa Island Village Inn, Inc. v. Lemen, case no. S127904 (April 26, 2007), that speech already proven at trial to be defamatory may be enjoined without running afoul of the First Amendment. Reaching back more than half a millennium to Blackstone’s commentaries as well as evaluating present-day commentaries and U. S. Supreme Court cases, the Balboa Island majority offers a primer on its view of the prior restraint doctrine. The majority draws the line between speech already adjudicated to be unprotected by the First Amendment and that which has not: “In determining…