• Appellate Procedure,  Judicial Notice,  Waiver of Issues

    No judicial notice for a law of physics, but for a different reason than you might expect

    I had to take the “high track” physics courses as part of my electrical engineering major curriculum at Canoe U. In fact, I liked my physics classes more than my engineering classes, and regret to this day I did not major in physics. So the discussion in Bermudez v. Ciolek, case no. G049510 (2d Dist., June 22, 2015), in which the court refuses to take judicial notice of a law of physics, caught my eye. Bermudez is an automobile accident case, in which defendant Ciolek was the driver of a car that collided with a second car driven by defendant Heacox, which in turn struck plaintiff, who was on the…

  • Articles by Greg May,  Legal Technology

    My blog post on reading briefs from a screen is now an article (and welcome, Citations readers!)

    A special welcome to anyone arriving here after reading my article in the June issue of Citations, the Ventura County Bar Association’s monthly publication. Maybe “iPad Judges” are Not Such a Good Idea is my adaptation of my post last month of the same name, citing studies showing that readers tend to comprehend and retain material better when reading from paper than from a screen. (The article is also scheduled to run this month in the Appellate Law Journal from Counsel Press.) I’ve since posted some comments on a related issue: whether laptops help or hurt students in the classroom. It is about time I get back to blogging about the law. Don’t be…

  • Legal Education,  Legal Technology

    Does classroom laptop use inhibit law school learning?

    A few weeks ago, I wrote about whether it was a good idea for judges to read appellate briefs on iPads or other screens, pointing out studies regarding decreased comprehension and retention reading from a screen compared to reading from paper. Thus, it does not surprise me at all that use of laptops in classrooms (especially law school classrooms) has some serious implications for learning. Take a look at this abstract of The Dynamics of the Contemporary Law School Classroom: Looking at Laptops Through a Learning Style Lens, by Regent University law professor Eric A. DeGroff: The Millennial Generation is at ease with modern technology and with juggling multiple tasks. Many…

  • Government,  Legal Technology

    DigitalDemocracy.org: an experiment in legislative transparency

    Imagine if you could go to a website, type in a term, and find every mention of that term in hearings in the California legislature . . . and not only that, but have the site take you directly to video of the hearing with a rolling transcript and information on legislators and lobbyists. That would be pretty cool, right? One-week old DigitalDemocracy.org does that: Try it out! I searched for “vape” to find testimony and argument regarding proposed regulation of e-cigarettes, and turned up testimony from representatives of the Smoke-Free Alternative Trade Association and Mount Sinai School of Medicine . . . plus argument from a bunch of dang…

  • Legal Technology,  Legal Writing

    Maybe “iPad Judges” aren’t such a good idea?

    I’m no Luddite. I own a PC, a Macbook, an iPad, an iPhone, and a Kindle. (I’m not in the market for an Apple Watch, though.) Yet, I’m not thrilled that more and more judges (supposedly) are reading briefs and reviewing appellate records on iPads and other electronic devices. The issue was brought to mind today by a lively exchange on the Los Angeles County Bar Association listserv for the Appellate Courts Section. The discussion is about the technical requirements for electronic filing or submission of briefs, petitions, exhibits, etc. in the Court of Appeal. There is predictable grumbling over the inconsistency in the rules from district to another, but…

  • Appellate Procedure,  Standard of Review,  Statutory Construction

    A break for some shipmates and a lesson on drilling down on the standard of review

    As a graduate of the “Boat School” (or “Canoe U”), I went on alert as soon as I spotted a case in yesterday’s advance sheets regarding whether some local county employees’ time as U.S. Naval Academy Midshipmen (don’t call them “middies”) could enhance their county retirement credits. My shipmates came out on the winning end of things, and the opinion offers a lesson on appellate procedure. The issue in Lanquist v. Ventura County Employees’ Retirement Association (case no. B251179, 2d. Dist., March 16, 2015) is succinctly stated in the first paragraph of the opinion: Ventura County Employees’ Retirement Association (VCERA) permits employees to purchase retirement service credit for time spent…

  • Legal Writing

    Do longer briefs correlate to success for Appellants?

    I cannot think of a single writing seminar I have attended or book I have read that did not emphasize succinctness. Now comes a paper published at the Social Science Research Network, “Too Many Notes”? An Empirical Study of Advocacy in Federal Appeals (download link),which, if this excerpt from the abstract is any indication, appears to raise a statistical challenge to that line of thinking, at least in the Ninth Circuit: Given the central role of written briefs in the process, we should examine seriously the frequent complaint by appellate judges that briefs are too long and that prolixity weakens persuasive power. In a study of civil appeals in the United States…

  • Writ Practice,  Writ Review

    Can your trial judge give you a boost toward getting appellate review of a non-appealable order?

    In theory, at least, the answer is yes, in some circumstances, by certifying the non-appealable order pursuant to Code of Civil Procedure section 166.1. Yesterday’s opinion in Audio Visual Services Group, Inc. v. Superior Court, case no. B256266 (2d Dist., Jan. 22, 2015) is a reminder that this tool for obtaining early appellate review is at the disposal of parties aggrieved by a non-appealable order and reluctant to petition for writ relief because of the generally long odds against having a writ petition heard on the merits. Section 166.1 provides: Upon the written request of any party or his or her counsel, or at the judge’s discretion, a judge may indicate in…

  • Appellate Jurisdiction,  Judges,  Motions to Vacate,  Post-Trial Practice

    Don’t lightly assume that you’ve extended your time to appeal with a post-trial motion

    The parties in your case have stipulated to have their case tried before a temporary judge (pursuant to Cal. Const., art. VI, § 21) and filed all trial-related papers (trial briefs, closing briefs, and requests for statement of decision) directly with the temporary judge at his alternative dispute resolution service. So, where should you file your motion to vacate the judgment under Code of Civil Procedure sections 663 and 663a? The answer is: with the clerk of the superior court. (As all documents should be, pursuant to Cal. Rules of Court, rule 2.400(b).) The appellant in Gonzalez v. Aroura Loan Services, LLC, case no. B247366 (2d Dist., Nov. 17, 2014)…

  • Blogging,  Blogroll,  California Supreme Court

    New blog to cover California Supreme Court

    I received an invitation yesterday afternoon to attend a reception to celebrate the launch of a new blog “focused on providing substantive coverage of issues concerning the Supreme Court of California,” and billed as a joint project of the California Constitution Center at Berkeley Law and the Hastings Law Journal: SCOCAblog. I don’t know if I was randomly chosen for an invitation or I was invited because I am a blogger on appellate issues. It’s nice to think it is the latter, and to think that maybe if I throw a link or two to SCOCAblog from time to time, the bloggers there might return the favor. Oddly, yesterday I…

  • Legal Writing

    What can Ernest Hemingway teach you about legal writing?

    In a Wall Street Journal article last month, “Why Adverbs, Maligned by Many, Flourish in the American Legal System,” Ernest Hemingway is cited twice as an example of an effective writer who eschewed adverbs. This colorful start to the article expresses the view of many lawyers: No part of speech has had to put up with so much adversity as the adverb. The grammatical equivalent of cheap cologne or trans fat, the adverb is supposed to be used sparingly, if at all, to modify verbs, adjectives or other adverbs. As Stephen King succinctly put it: “The adverb is not your friend.” In large part, the article explains the need for adverbs…

  • Mediation,  Strategy

    How to make your mediation brief effective

    There are some big differences between appellate mediation and mediation while your case is still pending in the trial court. But appellate and trial lawyers can both benefit from reading mediator Rande Sotomayor’s excellent article, “Effective Mediation Briefs,” in this month’s California Lawyer. I know Rande through my networking group, The Esquire Network (there’s my full disclosure), and have seen her present on other topics. I know her to be a very thoughtful mediator, and it shows in this article. What I found particularly persuasive was her advice that lawyers should get over their penchant for keeping the entirety of their mediation briefs confidential: Many lawyers submit “confidential” briefs to…

  • Strategy

    Opposing the pro se appellant

    I think a lot of people might think that any time the appellant is a lay person representing himself (i.e., appearing “pro se”), the respondent has a pretty easy time of it. Is that the case? I was reminded of this issue by an article on pro se plaintiffs in the Daily Recorder (subscription only link) titled “Pro Se Suits No Picnic for Defense Lawyers,” which described the difficulties of litigating against pro se plaintiffs at the trial court level. I think some of those difficulties can carry on through appellate proceedings, but overall I think a defendant-respondent in the court of appeal has an easier job opposing a pro…

  • Appellate Advocacy,  Briefing

    Doesn’t anybody read the rules?

    When is a brief written by a lay person likely to be of comparable quality to a brief written by lawyer for the other side in the same case? When both briefs stink: Brooks’s opening brief on appeal includes a statement of facts without any citation to the record. In the argument portion of the brief, references to facts are occasionally, but not consistently, supported by citations to the record. ECG’s respondent’s brief, which relies extensively upon facts developed at trial, does not include a single citation to the record. The failure to include citations to the record violates rule 8.204(a)(1)(C) of the California Rules of Court: Briefs must “[s]upport…

  • Remand,  Strategy

    When winning is risky

    Sometimes, an appeal doesn’t make sense to me. This can be true even if there are better-than-average odds of winning. When an appeal doesn’t make sense to me, I ask why the party wants to appeal. I’m sure that most of the time, the reaction is to think, “Isn’t it obvious? Because I lost!” But to my mind, that’s not always a good enough reason. As a matter of effective client relations, I get curious about motives when it seems to me, as an outsider, that a win on appeal would yield a negligible benefit or even risk making the appellant worse off. An example of the latter situation is…

  • Appellate Procedure,  Discovery,  Evidence,  Standard of Review

    Sometimes the standard of review is better than you might first think

    Clients (and their lawyers) can be disheartened when they conclude that the ruling they want to challenge on appeal is subject to review for abuse of discretion — a standard of review that is indeed daunting. But keep in mind that rulings ordinarily subject to review for abuse of discretion may be subject to the much more appellant-friendly de novo (independent) standard of review, in which the court of appeal decides the issue without any deference to the trial court. The defendant-appellant in Children’s Hospital Central California v. Blue Cross of California, case no. F065603 (5th Dist. June 9, 2010) was able to take advantage of this situation. Blue Cross…

  • Jurisdiction

    The Court of Appeal and the Supreme Court as courts of first resort?

    Well, this is unusual. We usually refer to the Court of Appeal and Supreme Court as “reviewing courts” because they review the decisions of lower courts. But yesterday’s decision in Disenhouse v. Peevey, case no. D063799 (4th Dist. June 3, 2014) discloses a rare instance in which either of these courts is the court of first resort. The Public Utilities Commission allegedly refused to allow the plaintiff to attend a commission meeting because of plaintiff’s affiliation with the Sierra Club. She sued in superior court to enjoin the meeting, on the ground that her exclusion violated the Bagley-Keene Open Meeting Act, then filed an ex parte application for a mandatory…

  • Appellate Procedure,  Immunity,  Standard of Review

    A substantial evidence argument works on appeal

    Substantial evidence challenges don’t succeed very often on appeal, so I sat up and took notice when I saw a successful challenge to the sufficiency of the evidence in today’s decision in Martinez v. County of Ventura, case no. B244776 (2d. Dist April 8. 2014). The Court of Appeal reverses a judgment for the public agency defendant that had successfully asserted a design immunity defense at trial to avoid liability for a defectively dangerous roadside condition that contributed to the plaintiff’s injuries. The burden of proof was on the county to establish that they had made a discretionary design decision in installing the type of roadside drain at issue. However,…

  • Appellate Maxims,  Appellate Procedure,  Standard of Review

    What happens when standards of review collide?

    Sometimes . . . nothing. As in Pielstick v. MidFirst Bank, case no. B247106 (2d Dist. Mar 26, 2014), in which the court was asked to reverse the trial court’s refusal to allow a plaintiff to voluntarily dismiss his suit after the hearing on demurrers had begun. First issue: what standard of review applies? There is some conflicting authority as to the appropriate standard of review for a request to voluntarily dismiss a case pursuant to section 581. The majority of cases apply a de novo standard, reviewing the issue as a matter of law where it involves the application of undisputed facts to the statute. [Citations.] However, in Tire Distributors, Inc. v.…

  • Appeals,  Judges,  Stare Decisis

    The consequences of reluctant unanimity in appellate decisions

    Through LinkedIn, I ran across an interesting appellate blog, Briefly Writing. In a post yesterday, blogger Michael Skotnicki shared his alarm at learning from the Eleventh Circuit’s chief judge that panel judges that initially dissent will “routinely” change their votes in order to make the decision unanimous (presumably, only once it is apparent that the majority judges cannot be persuaded to come around to the dissenter’s point of view). Skotnicki believes the practice harms appellate counsel because a losing client may think that the unanimity of the decision suggests he got bad advice or bad advocacy during the course of the appeal, and a wining client may think that unanimity…

  • Administrative Law,  Preclusion

    Collateral estoppel is no day at the beach (a lesson in appealing in a timely fashion)

    Occasionally, a party will try to get around the finality of a decision by making a “collateral attack” on its validity in a separate proceeding. That can work if you are attacking the jurisdiction of the tribunal to issue the prior ruling, but otherwise . . . well, I haven’t seen it work. (But there may be a case out there.) The plaintiffs in Bowman v. California Coastal Commission, case no B243015 (2d. Dist. March 18, 2014) were unusually imaginative in their attempt. Plaintiffs owned a coastal property. Their predecessor had applied for a coastal development permit to refurbish the residence on the property. After his death, his successors (plaintiffs)…

  • Publication/Depublication,  Sanctions

    Thoughts on publication of opinions imposing appellate sanctions for frivolousness

    This recent Southern California Appellate News post by Ben Shatz led me to a case that got me thinking further about the utility of publishing opinions imposing appellate sanctions. More than six years ago, I posted in response to a law review article that Ben co-authored with another, which surveyed the cases imposing appellate sanctions. As I recall, the article limited the time frame of the survey to the period since unpublished decisions became available online, since so many of the decisions imposing sanctions are never published. That led me to write: I was struck by how many of the cited cases were unreported.  The Court of Appeal should want…

  • Appellate Advocacy

    The “outsider’s perspective” theory illustrated in the extreme

    I’ve mentioned before that one of the valuable things an appellate lawyer can bring to your case is the “outsider’s perspective” — the ability to give the case an objective look that trial counsel is often unable to see because of close involvement in the case. What the appellate lawyer might see as the best grounds for appeal may differ wildly from what the trial lawyer thinks is a good basis for appeal. A trial lawyer that develops tunnel vision on a case usually does so because of his deep involvement with the case over a long period of time, resulting in a personal emotional and intellectual investment in the…

  • California Courts,  California Supreme Court,  Judges

    Justice Kennard retiring April 5

    Justice Joyce Kennard has announced her retirement from the California Supreme Court effective April 5, on which she will mark the 25th anniversary of her appointment. The article at the San Francisco Chronicle gives people a glimpse into  Justice Kennard’s drive and perseverence: Kennard was born in the East Indies and, as a child, was held along with her mother in a refugee camp in Java during World War II. They moved to the Netherlands after the war, and as a teenager Kennard had a leg amputated above the knee after developing a tumor. She came to the United States in 1961, found work as a secretary, and put herself…

  • Legal Writing

    The law, the story, and the policy

    Almost sounds like the beginning of a joke, doesn’t it? (A law, a story, and a policy walk into a bar . . . ) But I’m not presenting these things as a joke. According to San Diego antitrust attorney Jarod Bona at the Antitrust Attorney Blog, these are the Three Components of Every Effective Appellate Argument. I agree with a lot of his post, but I especially like this sentiment near the end (emphasis mine): To [combine these elements] effectively is not easy. It is an art form and requires careful thought and attention. But when it is done right, it is beautiful. Amen!

  • Legal Technology,  Legal Writing

    How to write for the “iPad judge”

    Are a lot of appellate judges/justices reading briefs on iPads these days? The Columbia Business Law Review recently published a short piece called Writing a Brief for the iPad Judge (on the journal’s online “announcements” page, which looks like the rough equivalent of a blog), which states that “a large and growing percentage of briefs are read on iPads” and offers advice on how to prepare a brief to make it iPad friendly. As you might expect, the advice is not about content, but about how to present the content in a format optimized for reading on an iPad. “A brief written to be read on an iPad should differ from one written…

  • Appellate Advocacy,  Briefing,  Preclusion,  Stare Decisis

    Make the argument yours, not someone else’s

    You represent an appellant in a state court action who claims the action is precluded by a prior federal court action because the plaintiff split his cause of action between the two lawsuits. Your first argument is under the longstanding “primary rights” standard applied by the California courts. Your second is that the court should apply the federal “transaction” standard, which is far more favorable to your position. Only one standard can apply, and you are asking the appellate court to apply a federal standard not previously applied by the California courts. Throw into the mix the fact that the continuing vitality of the California “primary rights” standard was recently…

  • Administrative Law,  Declaratory Relief

    Know your route of review . . . and when to invoke it

    If you don’t know your route of review and when to invoke it, you end up like the plaintiff in Tejon Real Estate, LLC v. City of Los Angeles, B247255 (2d Dist. January 23, 2014). In fact, not only did that plaintiff fail to seek review properly, it never even got a final determination subject to review. The plaintiff wanted to build a residence on a vacant lot and received an informal opinion from the fire department that it could  not build a residence unless a fire hydrant was installed within 300 feet of the property. It then got  an estimate from the city Department of Water & Power (“DWP”)…

  • Appellate Procedure,  Juveniles,  Standing to Appeal

    Emotional interest falls short of legal standing to appeal dependency ruling

    As a general rule, only a person “aggrieved” by a judgment has standing to appeal from it. Is a mother without reunification services “aggrieved” by a judgment granting her 18-year-old child’s request for the termination of dependency jurisdiction? The Court of Appeal answers “no” in In re J.C., case no. G048720 (4th Dist. January 21, 2014), and dismisses the appeal. J.C., the child of divorced parents, had been living with her father before being declared a dependent of the court a few months after her 15th birthday, when the court found that her father failed to ensure she attended school or get treatment for a psychiatric condition. After treatment at a…