Opinions from the Ninth Circuit are often summed up pretty well in the first paragraph. Yesterday’s decision in United States v. Horvath, case no. 06-30447 (July 10, 2007) is a case in point: Any person who knowingly and willfully makes a materially false statement to the federal government is subject to criminal liability under 18 U.S.C. § 1001(a). Congress chose to exempt from liability, however, false statements submitted to a judge by a party to a judicial proceding. 18 U.S.C. § 1001(b). We must decide whether the exception in § 1001(b) for “statements . . . submitted by [a] party . . . to a judge” encompasses a false statement…
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Write Like You Talk
This post from Roy Jacobsen at Writing, Clear and Simple offers some advice derived from an unlikely source: Winnie the Pooh. Jacobsen notes that too many people try to adopt a more “elevated” form of language in their writing than they use in their everyday speech. Instead, he advises that you write more like you talk, and he offers advice for evaluating your writing in these terms. Well worth a read. The use of plain language in writing is a recurring topic, (I recently linked to another blog post on the subject), no doubt because so many of us fail to heed advice in this area for more than a…
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The Problem of the Genderless Pronoun
To avert offending, writers have strived not to use “he,” “him” or “his” as a pronoun for a generic person that could be either male or female. The problem of the genderless pronoun is addresses humorously and practically in this post at Set in Style by Mister Thorne. He notes the alternative of using “it,” notes the use of the plural “they” and “their” to refer to a singular person, and rejects both practices in favor of some common sense editing.
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Amicus-Palooza
This article at Law.com discusses the unusually heavy participation of amici curiae in the pending Supreme Court case of North Coast Women’s Care Medical Group v. Superior Court (Benitez), case no. S142892. Forty organizations have filed amicus briefs, either individually or jointly. As one might expect, the issue is hot-button: were doctors within their rights to deny, on the basis of their religious beliefs, artificial insemination to a lesbian? Anyway, this got me to thinking . . . what is the record for the number of amicus briefs (or the number of amicus curiae, regardless of the number of actual briefs) in a California Supreme Court case? This case has…
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American Express Waives Arbitration through Settlement Misrepresentations
Remember that case in contracts class about whether promising to do something you were already going to do constituted consideration for a promise? The lawyers for American Express in the First District Court of Appeal case of Aviation Data, Inc. v. American Express Travel Related Services Co., Inc., case no. A111602 (July 6, 2007) apparently didn’t remember that day in contracts class. So they promised during class action settlement negotiations to implement a computer program in exchange for a release of claims . . . even though AmEx had already been using the program for two years. Then, as part of proceedings for court approval of the settlement, AmEx made…
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The Danger in Blogging about Writing
I’ve been blogging less than two months, and one of the things I am still getting used to is that the need to post quickly about current developments or about my comments on other blogs forces me to post without subjecting my writing to the same rigorous editing I apply to my writing in almost every other context. Which means I’m probably posting work that’s not up to my usual standards. Which, come to think of it, makes it very dangerous for me to keep blogging about writing skills, doesn’t it? Too late now. I’ve already posted twenty-one times on the subject of writing!
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Your Eraser is Your Friend
Kenneth W. Davis at Manage Your Writing has this post encouraging writers to use their erasers more. Davis explains that because of the time and effort we put into our writing, it is often difficult for us to acknolwedge that our writing would benefit from being trimmed. He bets that once you take his challenge to erase just three words from everything we write, you won’t be able to stop. His post also generated a link from a post at Writing, Clear and Simple, that I think has quite a clever title: “To sharpen your writing, use your eraser.“
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California Supremes on the Right to Rehearing on Unbriefed Issues
When is a party entitled to a rehearing from the Court of Appeal? One such case — where the decision is based on an issue the parties did not have an opportunity to brief — is codified at Government Code section 68081: Before the Supreme Court, a court of appeal, or the appellate division of a superior court renders a decision in a proceeding other than a summary denial of a petition for an extraordinary writ, based upon an issue which was not proposed or briefed by any party to the proceeding, the court shall afford the parties an opportunity to present their views on the matter through supplemental briefing. …
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New Judicial Council Forms Effective July 1, 2007
New and revised Judicial Council forms became effective on July 1, 2007. The list of new and revised forms is here. All of the Judicial Council forms are available for download here.
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Jones Day’s Low-Profile Roots?
OK, this is off-topic for this blog (I had to create the new “Law Practice & Marketing” category for it), but it concerns one of my old firms — my first firm — and I can’t help commenting. Jones Day was my first law firm out of law school in 1992. I was in their 90-lawyer L.A. Office. It turned out that “big firm” life wasn’t for me, and I left after two years, but there were many fine people and lawyers there. Which made it both amusing and distressing for me to learn from Carolyn Elefant at law.com about an article in Cleveland Scene titled “Deception HQ: Jones Day,…
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Raiders Lose on Independent Review of Order Granting New Trial
Congratulations! The court has granted your motion for a new trial! Now, just pray the trial judge doesn’t screw it up. Yesterday’s Supreme Court opinion in The Oakland Raiders v. National Football League, case no. S132814 (July 2, 2007) demonstrates again that no winner of a new trial can have confidence in the order granting the new trial unless the court specifies its reasons in the order or files its specification of reasons within 10 days of the order, as required by Code of Civil Procedure section 657. In this case, the court’s failure to specify its reasons results in a different standard of review on appeal that effectively shifts…
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An Arbitrator with Chutzpah
It takes some cheek for an arbitrator to reform a collective bargaining memorandum of understanding (“MOU”) between a state agency and an employee bargaining unit when the MOU has already been approved by the legislature pursuant to the Dills Act. And its reversible error, of course. In Dept. of Personnel Administration v. Calif. Correctional Peace Officers Assn., case no. C051636 (June 29, 2007), the Third District Court of Appeal affirms the trial court’s order vacating the arbitration award. Such employment agreements must be submitted to and approved by the legislature. By reforming the agreement to conform to her findings regarding the parties’ intent, thus changing the provisions approved by the…
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Discounted Third Party Purchase of Medical Account Doesn’t “Hanif-y” Plaintiff’s Recovery
Mention Hanif v. Housing Authority (1988) 200 Cal.App.3d 635 to a personal injury lawyer, and he’ll likely bristle. Hanif, along with Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298, held that an injured tort plaintiff may recover only the amount of medical expenses he or she paid or incurred, even if the reasonable value of those services is much higher. Thus, a medical provider who writes down the bill or accepts a lesser amount from an insurer as payment in full effectively reduces the potential recovery of the plaintiff. Should the same rule apply if the medical provider sells the plaintiff’s account (including a lien against…
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Waiving Issues in Arbitration
Keep a close watch on those arbitration arguments, especially as they relate to the scope of the arbitrator’s power as defined by the arbitration agreement. That’s the lesson of J.C. Gury Co. v. Nippon Carbide Industries (USA) Inc., case no. B194926 (June 29, 2007), in which the Second District Court of Appeal holds that Nippon waived the contractual limitation on the power of the arbitrator by its conduct during the arbitration, and thus may not petition to vacate the award on the ground the arbitrator exceeded his powers. The agreement stated that the arbitrator “shall not have the power to change, alter or modify” any term of the parties’ agreement. …
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Ninth Circuit Rules Amendments Available
Amendments to the Ninth Circuit rules went into effect on July 1, 2007. They are available for download as a PDF from the Ninth Circuit Court of Appeals website. It’s a handy file, with a chart of the changes and revised or added language clearly highlighted.