If you had been convicted of a crime and either exhausted or foregone your right of appeal, and then the United States Supreme Court decided a case that suggests your sentencing was error, you’d file a habeas petition, wouldn’t you? Of course you would. But you’d be out of luck in California if the U. S. Supreme Court case you were counting on was Cunningham v. California (2007), ____ U.S. ____ [127 S.Ct. 856], in which the Supreme Court held that upper term sentences may not be imposed based on facts found by the court rather than the jury beyond a reasonable doubt. In In re Gomez, case no. B197980…
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The Dangers of Ghostwriting Appellate Briefs
There’s an interesting post at Adjunct Law Prof Blog linking to an ABA Journal article on the pros and cons of ghostwriting for pro per clients, including the ethical issues involved. I’ve been approached about this type of arrangement a couple of times, and it was tempting to accept, especially when my practice was new. But it just didn’t pass the “smell test” to me, so I never bothered to research the ethics of it.
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Judgeships: Brilliant Need Not Apply?
Prawfsblawg has a post about a just-published paper, from J. Mark Ramseyer of Harvard Law School, with an interesting thesis: better to have judges that are not brilliant and creative. Prawfsblawg notes of Ramsmeyer’s paper: Taking [Jordan v.] Duff & Phelps, a contracts/corporate case from the 7th Circuit featuring a heated disagreement between Judges Posner and Easterbrook, as his text, Ramseyer writes that it “shows the risk inherent in appointing judges too creative and independent for the job.” Prawfsblawg quotes from the paper: [J]udging is not a job for unconstrained, innovative minds. Judges are government bureaucrats. Their job is to be honest, to unravel a set of facts, to decide…
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Trends in Legal Writing
Here’s the opening of Professor Schiess’s post at legalwriting.net: I stay current on legal writing the way you stay current on your practice area. I keep up on the trends in legal writing. Yes, trends. Are you surprised legal writing changes and evolves? It does, and here are three areas that are changing right now. Check it out.
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Ninth Circuit: No Appeal from Order Denying Issuance of Notice of FLSA Collective Action
The collateral order exception to the final judgment rule allows a circuit court to exercise its jurisdiction, even in the absence of an appealable final judgment, if the order appealed from meets certain prerequisites. Providing a good lesson in the Ninth Circuit’s application of the exception is today’s opinion in McElmurry v. U.S. Bank Nat’l Assoc., case no. 05-36407 (August 8, 2007), in which the plaintiffs, seeking unpaid overtime pay, appealed from an order denying their motion to issue notice of a collective action under the FLSA. The Ninth Circuit explains the prerequisites for application of the exception (citations omitted): Jurisdiction exists in only a “small class” of cases that…
- Appellate Procedure, California Procedure, California Supreme Court, Federal Courts, Federal Procedure, Ninth Circuit, Standard of Review
Adult Bookstore Case Results in Certified Question to State Supreme Court
Under rule 8.548(a), California Rules of Court, a Federal Court of Appeals, the U.S. Supreme Court, or the court of last resort of another state may ask the California Supreme Court to answer a question of California law where “(1) The decision could determine the outcome of a matter pending in the requesting court; and (2) There is no controlling precedent.” Most lawyers are already familiar with this procedure, at least in principle. What gives a special appellate twist to Fantasyland Video v. County of San Diego, case no. 05-56026 (August 7, 2007) is that the Ninth Circuit asks the California Supreme Court to specify the standard of review to…
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Court of Appeal Adopts Abuse of Discreton Standard for Review of Family Code Section 2107 Sanctions Award
In Marriage of Feldman, case no. D047896 (4th Dist. July 20, 2007, certified for publication August 7, 2007), the Court of Appeal upholds a whopping $250,000 in sanctions and $140,000 in attorney fees against a husband who failed to disclose material assets in the course of divorce proceedings. The sanctions were awarded pursuant to Family Code section 2107, subdivision (c) and Family Code section 271, subdivision (a). Section 271 sanction orders are reviewed for abuse of discretion, but the court had no precedent for the standard of review to apply to awards under Section 2107, subdivision (c). The court determines that abuse of discretion applies here as well, since “the…
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Undue Delay Precludes Coram Nobis Relief Even Where No Prejudice Results from Delay
A petitioner for writ of coram nobis must satisfy a four-part test, one element of which is that “valid reasons exist for not attacking the conviction earlier.” Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1987). In United States v. Riedl, case no. 06-10424 (August 6, 2007), the petitioner argued to the Ninth Circuit that even if the court did not accept her reasons for delay as valid, the delay could not preclude relief unless the government asserted laches, i.e., that it would suffer prejudice from a grant of the writ in light of the delay. The Ninth Circuit rejects the argument, finding that undue delay precludes relief…
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No Substitute for Certificate of Probable Cause to Appeal from Order on Bifurcated Family Law Issue
Dissolution matters are often bifurcated. Ordinarily, a party must await final judgment before appealing. However, Family Code section 2025 provides a means of appealing an order on a bifurcated issue in the appropriate circumstance: “Notwithstanding any other provision of law, if the court has ordered an issue or issues bifurcated for separate trial or hearing in advance of the disposition of the entire case, a court of appeal may order an issue or issues transferred to it for hearing and decision when the court that heard the issue or issues certifies that the appeal is appropriate. Certification by the court shall be in accordance with rules promulgated by the Judicial…
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More Internet Commentary about Judges
Legal Pad (a very good blog regarding legal issues in California) brings our attention to CourthouseForum.com, a 2-year old website with a directory of more than 27,000 judges and a discussion forum for commenting on them. Before you visit the site, check out Legal Pad’s post for a preview of some of the comments. Says Legal Pad about the commenters: “And boy are they candid.” You may recall my post about an ethics complaint brought against a Florida lawyer who posted highly negative comments about a judge on a local internet forum.
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More on U.S. v. Larson
A few days ago, I blogged about the odd reasoning behind the en banc Ninth Circuit’s purported resolution in United States v. Larson of a 3-way intra-circuit split over the applicable standard of review in Confrontation Clause cases. Here’s some other blog coverage. While my post concentrated on the intra-circuit split, Split Circuits gives you coverage of the split among the federal circuits on the same issue. California Appellate Report comments on the odd 4-4-7 split vote of the en banc panel that results in one of the 4-judge opinions being the opinion of the court. Larson is Ninth Circuit Blog’s Case o’ the Week, where the federal defenders’ blog…
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Appellate Oral Advocacy is Conversation, not Argument
So says this article on the Sidley & Austin website: [W]hy are so many oral arguments so awful? Because too many lawyers actually argue. “Oral argument” is a misnomer. It’s not an argument; it’s a conversation. Trial tactics and oral motion practice have little in common with appellate oral advocacy, except that all involve talking. Instead, the experienced oral advocate converses with the panel, as she and the judges grapple with the difficult legal issues presented by the case that will affect the development of the law. This is a really good article that builds on the “conversation” theme by giving sound advice on how to prepare for that conversation. …
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Storytelling in Appellate Briefs
You’ve heard it before: briefs should tell a story. But rarely, if ever, have you seen the principle so thoroughly explained as it is by Associate Professor Kenneth Chestak at Indiana University School of Law, who accompanies his article on the topic with a sample brief and (short) appellate record. Thanks to the (new) legal writer blog, where you should go for all the links. By the way, for a far more succinct (but also good) lesson in storytelling, see this short article in Nevada Lawyer by Tami Cowden of the Appealing in Nevada blog, which I originally linked to in the context of this post.
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En Banc Ninth Circuit Resolves Intra-Circuit Split on Standard of Review in Confrontation Clause Challenges
In United States v. Larson, case no. 05-30076 (August 1, 2007), an en banc Ninth Circuit court resolves a 3-way intra-circuit split on the standard of review to apply in Confrontation Clause challenges. Citing one line of Ninth Circuit cases applying de novo review, another reviewing for abuse of discretion, and a third applying a “combination” of these two standards, the courts states that it is adopting the last of these, but its analysis seems less than clear to this reader . . .
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Arbitration Agreement May Be Invoked by Non-Parties Sued as Alter Egos of a Party to the Agreement
A contract contains an arbitration provision. Plaintiff sues you on the contract, even though you are not a party, on the ground that you are an alter ego of the corporation that is a party to the agreement. Can you invoke the arbitration provision even though you are not a party to the contract? Yes, says the Court of Appeal in Rowe v. Exline, case no.A116463 (1st Dist. July 31, 2007). After all, reasons the court, the whole theory behind alter ego liability is that the corporation and the alter ego are one in the same. Since the corporate party is entitled to the benefit of the provision, so must…