Remember the response you got every time you asked your teacher how to spell a word? “Look it up on the dictionary.” To which we all mumbled under our breath, “How am I supposed to look it up if I don’t know how to spell it?” Well, there may be another question that gets the same answer to “look it up in the dictionary.” That question is, “How do I interpret this statute?” Honest. Check out University of Louisville’s law school Library Director Kurt X. Metzmeier’s paper at SSRN (Social Science Research Network) entitled “You Can Look it Up: The Use of Dictionaries in Interpreting Statutes.” No mumbling, now. Here’s…
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A Call to Law Professors and Those Who Know Them
Prawfsblawg posts Are you now or have you ever been a member of a debate team? It is a call for participation by law professors in a worthwhile project. (For that reason, this post incorporates almost the entirety of the linked post. I’m sure Prawfsblawg won’t mind if it helps get the word out, but I’ll feel less guilty about it if you click the link to the Prawfsblawg post.) Jim Speta , a law professor at Northwestern, is trying to identify law professors who debated in high school or college. He’s seeking to make the case that debate provides skills and interest that lead students to consider law school,…
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Decision of the Day Defends the Ninth
The Ninth Circuit, as everyone knows, gets criticized a lot. But Does the Ninth Get a Bad Rap? That’s the title of a post by Robert Loblaw at Decision of the Day, which posits that reversals of some Ninth Circuit decisions aren’t always just about the Ninth Circuit. He notes that commentators like to jump on the big reversals as evidence that the Ninth is out of whack, but: there are plenty of cases where the Supreme Court uses an appeal from the Ninth as an opportunity to reverse decisions from other circuits, albeit with much less fanfare. He describes one recent instance in his post.
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Jurisdiction over Church Property Issues
When does a Southern Baptist church cease to be a Southern Baptist church? I know that sounds like a set-up, but there’s no punchline here. It’s a serious question, and it was at the heart of a dispute decided by the a Monterey County Superior Court. In Central Coast Baptist Assn. v. First Baptist Church of Los Lomas, case no. H029958 (6th Dist. August 23, 2007), a reversionary clause in First Baptist’s constitution provided that its assets would pass to Central Coast, a voluntary association of Baptist churches, in the event of a “dissolution or winding up” of First Baptist or if it should “cease to be a Southern Baptist…
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Free U.S. Case Law Database Launched at Columbia
Columbia Law School issued this press release last week regarding its launch (in conjunction with University of Colorado Law School) of a free database of U.S. Supreme Court and Courts of Appeals decisions dating back to the early 1990s. The school plans to expand the database in the future and says that its AltLaw.org service “has the potential to transform the national landscape of case law resources.”Thanks to Legal Writing Prof Blog for the link.UPDATE (8/30/07): More on the project at Info/Law. Thanks to Law School Innovation for the link.
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Woo-Hoo! We’ve Hit the Big Time!
One sort, anyway. My post on alternative fee arrangements in appellate practice is featured in Blawg Review #123 hosted by Texas Appellate Law Blog. According to the Blawg Review website: Blawg Review is the blog carnival for everyone interested in law. A blog carnival is a traveling post about a topic or theme. For example, there’s Carnival of the Capitalists, concerning business and economics, while Grand Rounds is about medicine and healthcare, and Blawg Review has topics discussed by lawyers, law students and law professors. Each weekly issue of Blawg Review is made up of article submissions selected from the best recent law blog posts. The blogger that puts together…
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Grand Jury Secrecy vs. Civil Rights Plaintiff’s Right to Discovery
If your civil rights lawsuit alleged you were imprisoned for 24 years for a murder you didn’t commit and your conviction was based on the perjured testimony of a jailhouse informant, you might want to take a peek at the records of a grand jury investigation into the misuse of such informants during the time you were convicted. But there’s that pesky issue of grand jury secrecy, so the trial court rules that you have no right to access those records. This is what happened to Thomas Lee Goldstein, but he has a second chance after Goldstein v. Superior Court, case no. B199147 (2d Dist. August 23, 2007), in which…
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Bibliographies re Appellate Oral Advocacy and Brief Writing
Touro College’s Jacob D. Fuchsberg Law Center provides this list of research guides available as PDF downloads. Included are these self-explanatory titles: and “May it Please the Court . . . “: A Select Bibliography of Appellate Oral Advocacy Materials Best Brief: A Select Bibliography of Brief Writing Materials. Both appear to be limited to materials available at the center’s library, but there’s enough reading on each of them to keep anyone but Evelyn Wood busy for a long, long time.
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District Court Orders and Opinions Available for Free at Justia
Thanks to Appellate Law & Practice, I (and you) now know that some District Court opinions and orders are available for free at Justia.com. A brief discussion of the service is at LibraryLaw Blog.
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Ninth Circuit: Anticipated Attorney Fees on Appeal Can be Considered in Calculation of Appeal Cost Bond — Sometimes
In Azizian v. Wilkinson, case no. 05-15847 (August 23, 2007), the Ninth Circuit faced, for the first time, an issue on which other circuits have split: “whether, or under what circumstances, appellate attorney’s fees are ‘costs on appeal’ that a district court may require an appellant to secure in a bond ordered under Federal Rule of Appellate Procedure 7.” It provides its conclusion at the outset of the opinion: We conclude that a district court may require an appellant to secure appellate attorney’s fees in a Rule 7 bond, but only if an applicable fee-shifting statute includes them in its definition of recoverable costs, and only if the appellee is…
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Alternative Fee Structures in Appellate Practice
D. Todd Smith at the Texas Appellate Law Blog has a nice post on the suitability of alternative fee structures for appellate practice. I generally concur with his post. Appeals are far more predictable than the progress of a lawsuit in the trial court, which generally enables an appellate practitioner to estimate the time that will be spent on a case and formulate a fair flat fee. Smith also addresses contingent fees. Like Smith, I too was a “big firm” lawyer and enslaved by the concept of the “billable hour” for years. As a solo, I am far more conscious of every minute I spend on a case. The freedom that…
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The Humble Opinions of Judges
Professor Orin Kerr has a fun post at The Volokh Conspiracy about the use of the phrase “in my humble opinion” in judicial opinions. As with most posts at the Conspiracy, it generates quite a few comments — some serious, some not.
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Published Order Granting Extension of Time for Government to File Brief in Death Penalty Case
Professor Martin at California Appellate Report serves up some comments, with his usual good humor, on a Ninth Circuit order granting the government more time to file a brief in a death penalty appeal. Yes, even an order in a death penalty case can be humorously analyzed, and without violating good taste.
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Review for Abuse of Discretion Impossible when Record Fails to Disclose Reasons for Decision
Gomez v. Gonzales, case no. 06-70941 (9th Cir. August 22, 2007) demonstrates how the abuse of discretion standard of review can be undermined by a weak record. The weak record in this case results in remand instead of a decision on the merits. The Board of Immigration Appeals denied a motion by the Garcias for leave to file a late brief. The grant or denial of such a motion is within the BIA’s discretion. Here, however, the BIA’s order offered no “reasoned explanation” for its denial of the motion: Denying the Garcias’ motion, the BIA conclusorily reasoned: “We find the reason stated by the respondents insufficient for us to accept…
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Study of Sanctions in Appellate Proceedings
Ben Shatz, whom I’ve had the pleasure of meeting and corresponding with from time to time, has co-authored (with JoAnne Sweeny) an article recently published as “The Price of Frivolity: A Longitudinal Study of California Appellate Sanctions” (2007) 28 Whittier L.Rev. 1087. Here’s how the article describes itself in its introduction: This article attempts to fill that void [in literature regarding sanctions] by exploring the “5 W’s” — who, what, where, when and why — of California appellate sanctions by analyzing court of appeal sanctions awards from 2002 (the first year unreported cases were included in online search engines) through 2005. More specifically, this article describes which courts award sanctions,…
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Pre-Opinion Settlement Disclosed after Publication of Opinion Requires Vacation of Opinion and Dismissal for Mootness
On June 29, the Ninth Circuit reversed a preliminary injunction order that prohibited National Beverage Corporation “from selling or marketing its line of ‘Freek’ energy drinks in their current containers or containers confusingly similar to” the trade dress of plaintiff Hansen Beverage Company’s “Monster” energy drink. The decision gathered significant attention from blogs in the Ninth Circuit. Seattle Trademark Lawyer and IP Law Observer gave rather objective analyses. California Appellate Report and Appealing in Nevada were more opinionated about the result, appearing to come down on opposite sides. (Readers curious to see the packaging of the products can see the appendix to the opinion or, better yet, see the sharp…
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Mootness Requires Loss of Existing Controversy, Not Alternate Forum for Resolution of Issues on Appeal
“The ground has shifted considerably since the Marlins filed their original complaint for a declaration of rights.” If that sounds to you like a court about to examine whether that shifting ground has mooted the appeal, then you have a good ear. In Marlin v. AIMCO Venezia, case no. B188407 (2d Dist. August 16, 2007), tenants (or “Marlins”) filed a declaratory judgment action against their landlord for a declaration of their respective rights under the Ellis Act, which allows “landlords who comply with its terms to go out of the rental business by evicting their tenants and withdrawing all units from the market even if doing so would otherwise violate…
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Putative Class Members Lack Standing to Appeal after Dismissal of Uncertified Class Action
The appeal in Employers-Teamsters v. Watson Pharmaceuticals, case no. 04-56791 (9th Cir. August 16, 200) was from four consolidated actions brought by investment advisor Anchor Capital against Watson Pharmaceuticals, alleging violation of the securities laws. The trial court considered motions for the appointment of lead plaintiff pursuant to the Private Securities Litigation Reform Act (the “PSLRA”), 15 U.S.C. § 78u-4(a), including a motion from the appellants. Anchor Capital was appointed lead plaintiff. After Watson Pharmaceuticals successfully moved to dismiss on Rule 9(b) grounds (insufficiently specific pleading of fraud, Fed. R. Civ. P. 9(b)), the court granted Anchor Capital’s request to dismiss all four actions with prejudice. The appellants never filed…
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Nonsuit after Opening Statement in Bench Trial
Lingenfelter v. County of Fresno, case no. F005021 (5th Dist. August 16, 2007) unknots a sticky procedural question: In the published portion of this opinion, we hold that a motion for nonsuit, pursuant to Code of Civil Procedure section 581c, subdivision (a), does lie in a trial by the court. We publish on this issue because the disagreement of our concurring colleague demonstrates that there is a conflict of authority. More specifically, the court holds that nonsuit is available in a bench trial immediately after the close of plaintiff’s opening statement. The court’s exercise in statutory interpretation of Section 581c is detailed. It examines not only Section 581c, but also…
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The Addition of Fees and Costs to a Judgment Does Not Restart The Clock on Time to Appeal from the Judgment
Torres v. City of San Diego, case no. D049111 (4th Dist. July 25, 2007, ordered published August 17, 2007), presents some curiously unique facts. The City of San Diego approved a resolution for the indemnification of pension board members against amounts incurred by them in actions relating to their scope of performance as board members. The board members later found themselves in need of indemnification — because of two lawsuits brought against them by the City! When their demand for indemnification under the resolution and under Government Code section 995 was refused, the members sued the city. The members prevailed on summary judgment, and the judgment entered on the motion…
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Oral Argument Advice from a Retired Justice
Reed Smith has a short paper on its website entitled “The Dynamics of Appellate Oral Argument.” One of its authors served for fourteen years on the California Court of Appeal, so I think it is safe to say that this is some good advice. The article addresses how the advocate can argue effectively despite not being privy to the “behind the scenes” activity at the court and possibly not being able to judge the motivation of the questioner: You, of course, have entered the picture unaware of what went on behind the scenes and can only guess at what may be motivating a question. For this reason, your first task…
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How Does a Court Write a Trade Secrets Opinion When It Can’t Disclose the Trade Secrets?
That was the difficult question facing the court in Advanced Modular Sputtering, Inc. v. Superior Court (2005) 132 Cal.App.4th 826. An excerpt from the opening paragraph of the opinion gives you an idea of the substantive issues facing the court (emphasis added): 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…
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Prawfsblog Looking for Worst Legal Arguments
Here’s our second contest of the day related to bad legal skills. Well, not a contest really, since there doesn’t appear to be a plan to announce a winner or award prizes. Prawfsblawg is soliciting examples of “the weakest legal argument you’ve ever heard.” Add your contribution to the comments at this post at Prawfsblawg. As of this posting, there were 56 comments already. Appellate practice offers a whole new area of bad argument: the argument that was proper at trial but has no place at all in the court of appeal even if legally correct. Using emotion-laden arguments, arguing credibility and relative weight of the evidence are some examples. I…
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Which Bystanders to Personal Injury Can Claim Emotional Distress?
a interesting issue of tort liability is presented by Ra v. Superior Court, case no. B19766 (2d Dist. August 15, 2007). The opening paragraph of the opinion does such a good job of framing the issue that I quote it in full here: In Thing v. La Chusa (1989) 48 Cal.3d 644, 667 (Thing), the Supreme Court held only “closely related percipient witnesses” may seek damages for emotional distress caused by observing the negligently inflicted injury of a third person and specificallylimited recovery to a plaintiff who “is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to…
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Posting Schedule
I will be out of town starting tomorrow and will not return until Monday night. I’ve set up posts in advance for tomorrow and Friday, so they obviously won’t cover breaking news. I’m not sure if I will have internet access, so I may not be able to see the latest cases or court news until my return.
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Bad “Legalese” Can Earn an Award
Have you run across a particularly egregious case of “legalese” lately? It may win you some prizes. Go to the blog The Party of the First Part for details on submitting your entry for the newly announced “Golden Gobbledegook” award, learn where the word “gobbledegook” came from and the prizes the winner and two runners up will win. POFP offers this encouragement (besides the prizes): “Looking for inspiration? Check out the Legalese Hall of Shame at POFP’s website.”
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Attorney Fees in Public Interest Case
I added Anthony “Tom” Caso’s “The Opening Brief” to my “Appellate Blogs” blogroll a few weeks ago. Tom is a Sacramento appellate attorney and new appellate blogger. (By the way, Tom, welcome to the blogosphere.) Today, he has an excellent post entitled “Can Fees Exceed Damages?” He discusses yesterday’s decision in Estrada v. Fedex Ground Package System, Inc., case no. B189031 (2d Dist. August 13, 2007), in which the Court of Appeal reverses an attorney fee award for plaintiff and remands for reconsideration of the amount. This was no “small potatoes” case. From the opinion: Estrada’s motion asked for $619,691 in costs and $6,789,325 for his attorneys’ fees, a total…
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Learning How to Discard Weak Arguments
“The Risk of the Kitchen Sink Approach” is a post at Raymond Ward’s the (new) legal writer blog about the necessity of trimming weak arguments so you can do your best presenting the good ones. I highly recommend both articles linked to in Mr. Ward’s post (that recommendation goes for his blog, too). They recognize the obstacles in identifying and excising weak arguments, with specific tips on how to overcome them. One culprit, in the opinion of James McElhaney, is technology, which aggravates two other obstacles: One of the easiest ways to obscure your theory of the case is to get caught in the word processor trap. The ease of…
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Ninth Circuit Website Kudos
Howard Bashman’s latest column at Law.com is about the need for more free internet access to federal court case information. Acknowledging that access to published and unpublished decisions is very good, he laments the general lack of access to information about cases pending rehearing en banc. The Ninth Circuit is one of two he praises. Specifically, he lauds the Ninth for providing free access at its website to a list of cases pending rehearing en banc, the issues as to which rehearing has been granted, the rehearing petitions and oppositions. Indeed, he calls it “a wonderful example of what the other federal appellate courts should be doing.” Now I feel…
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The Reasonableness of Airport Screening: Consent, 9/11, and Terrorism
Here’s an interesting Fourth Amendment case from the Ninth Circuit today. In United States v. Aukai, case no. 04-10226 (August 10, 2007), an en banc panel of the Ninth holds that the administrative search at airport screening, including enhanced secondary screening, is reasonable with or without consent once the person attempts to access the secure area of the airport, even if he says he no longer wishes to board a plane. Aukai, after passing through the metal detector and having his personal effects screened without event as part of his entry to the secure area of the airport, was subjected to secondary screening because he had no ID. This screening…