We’ve all heard of doctors lamenting the need to order lots of tests for the most mundane symptoms in order to protect themselves from malpractice lawsuits. Are lawyers exhibiting equivalent behavior? Last week, a post at the Lawyerist blog (Want To Destroy Your Case? Throw In The Kitchen Sink.) featured a federal district court decision adopting the recommendations of the magistrate judge to order sanctions all around in a sexual harassment lawsuit — i.e., all of the attorneys on both sides had monetary sanctions imposed against them. On the plaintiff’s side, the attorneys were sanctioned for what Lawyerist called “evidence-free sexual harassment and retaliation allegations.” On the defense side, the attorneys representing the…
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Sixth District Court of Appeal offers the legislature some advice on amending the anti-SLAPP statute
If you just lost your appeal, handled by attorneys at a high-powered law firm, with fees approaching – oh, heck, who knows, but three lawyers billing at a “BigLaw” firm have to run up a pretty hefty bill on a case potentially worth billions of dollars – you might not be happy with language in the introduction of the opinion characterizing your appeal as “utterly without merit” and noting that the court declined imposing sanctions only because the court did “not wish to further delay the long-overdue trial of the merits of [the] action.” That’s exactly how the court opened its opinion in Hewlett-Packard Co. v. Oracle Corp., case no. H039507 (6th Dist. Aug. 27,…
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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…
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Bad reasons to appeal may be hiding the good one(s)
I’d love to have a nickel for every prospective client who has called me about appealing his case for the wrong reason. I don’t mean that he’s misidentified the best legal issue to raise, or even that his appeal has a very low probability of success. I mean reasons wholly apart from the merits of their case. When one of these prospects calls, he doesn’t know he wants to appeal for the wrong reason. It’s up to me to deliver the bad news, usually. You’re probably thinking that this is the part where I tell you not to call me if you’re motivated by any of these bad reasons. But the news…
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Big city justices roll into Napa
The First District Court of Appeal convened yesterday in Napa to hear two criminal cases at a public auditorium before about 400 high school students. The justices also treated the students to a Q&A session. Given that most people’s exposure to the law through the entertainment media nearly always involves a trial, this session strikes me as an excellent opportunity to educate the public about appeals. After all that exposure to movie-version trials, one suspects that the typical student, unless adequately briefed on the proceedings beforehand, would walk away from an appellate hearing saying to himself, “That’s it?” I’m curious whether that sentiment came out during the Q&A or in…
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The Mindset of Appellate Judges
Here is a well-stated look into the minds of appellate judges, from a 2-year old column by Howard Bashman: One essential trait that an appellate lawyer must possess is the ability to think about legal issues from the perspective of judges who serve on appellate courts. Appellate courts are not only responsible for trying to reach the correct result in the cases on appeal, but their rulings often create precedents that will govern other cases that don’t even exist yet. Thus, an appellate lawyer must be cognizant not only of how existing precedent will affect an appellate court’s view of a newly filed appeal, but also about how the precedent…
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Does it Matter Who’s On Your Panel?
Our local appellate court in Ventura (Second District, Division Six) can be a good place to hang out if you’re looking for a chuckle. I don’t think I’ve ever left a session there without having at least once laughed, or at least smiled — just not in my own case. No, I don’t laugh at anybody . . . I laugh with them. At a recent session, a somewhat mischievous question from the presiding justice brought some grins to those waiting and provided food for thought. Presiding Justice Arthur Gilbert is well known for his wit, and recently it even came out during the criminal case calendar. Usually, all four…
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Why Some Lawyers and Their Clients are Reluctant to Engage Appellate Counsel, Part 4: “This Case Needs a Specialist.”
(NOTE: This post is the fourth in a series. To read the announcement of the series and/or leave your ideas for subsequent installments, click here.) Today’s post looks at another ability-related reason the trial lawyer decides to handle the appeal. He — and in this case, I’m referring to a trial lawyer that specializes in some substantive area of the law — thinks to himself: “This case needs a specialist.” The trial lawyer who says that rarely means an appellate specialist. Instead, the ace employment lawyer (to use just one example) thinks, “This employment case needs an employment lawyer like me on appeal, I can’t pass it off to an…
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Why Some Lawyers and Their Clients are Reluctant to Engage Appellate Counsel, Part 2: “It’s Just Litigation.”
(NOTE: This post is the second in a series. To read the announcement of the series and/or leave your ideas for subsequent installments, click here.) In my first post in this series, I broke down lawyers’ reasons for not engaging appellate counsel into two broad categories: those related to ability and those related to economics. Today, we will examine a reason related to ability: “It’s just litigation”, or “Hey, I’m a litigator, and appeals are litigation, so I can do it.“ Are appeals litigation? Well, let’s see. Adverse parties? Check. Legal and/or factual disputes? Check. Courtroom and judges? Check. Judgments? Check. Yeah, I’d say that appeals are litigation. That said,…
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Gee, We’re Smart!
At his Legal-Writing Blog, Wayne Schiess shares some observations from one of his students, who aspires to be an appellate lawyer and worked in the appellate practice department of a law firm. See the professor’s post for all the details, but among the student’s observations: I realized why appellate lawyers at law firms are stereotypically labeled as the smartest lawyers at the firm. The fact that they can come to work, day in and day out, and spend hours thinking and writing at such a level makes them nothing less than brilliant, if you ask me. I can’t figure out why, but that was my favorite part. Actually, I think it’s…
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A Disregard for Fiduciary Duties that is “Without Precedent”
Picture this: You represent the defendant in a lawsuit. You don’t have time to handle his case — indeed, you admit as much on the record — and the court imposes terminating sanctions against your client for failing to respond to discovery. Because of your admission, your client is allowed to obtain new counsel, but new counsel is unsuccessful in getting the sanctions order vacated, and a default judgment of $730,000 is entered against your client, who then promptly sues you for malpractice and, while that suit is pending, appeals the default judgment. What do you do, besides give notice to your malpractice carrier? If you’re the defendant’s first attorney…
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Amendments to California Rules of Court Taking Effect January 1, 2008
Go to this page at the Judicial Council website to download amendments to the California Rules of Court, including this announcement of changes to more than 40 rules in Title 8 (Appellate Rules) that take effect on January 1, 2008.
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Listen to the Court the First Time
More chutzpah on appeal, this time in United States v. Collins, case no. 05-4708 (7th Cir., Dec. 14, 2007). A little out of my usual jurisdiction, but so outrageous I had to tell you about it (and once again sponge off the great work at Decision of the Day). I’ll tell you only that this time the attorney gets spanked for making the exact same argument the court had described as “unbelievably frivolous” in a prior case involving the same attorney. The argument? Go to this post at Decision of the Day, where you’ll also find a link to a page that shows the lawyer in Collins is not alone…
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Chutzpah on Appeal
“Chutzpah” is about the most polite word I could come up with for the appellant’s audacity in United States v. Moreland, case no. 05-30541 (9th Cir., Dec. 13, 2007). Moreland apparently swindled people out of $73 million, so I’m going to assume he had a little bit of money, legitimately earned, set aside for his defense. Yet he fought tooth and nail to proceed pro se, which is where all his problems started. The decision is covered very well, and in some detail, in this post at Decision of the Day, which begins: In my line of work, I see all kinds of appellate arguments: brilliantly creative, colossally stupid, and…
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Using the Court of Appeals as a Crystal Ball
“Don’t do it” is the friendly advice from the Ninth in Global Horizons, Inc. v. U. S. Dept. of Labor, case no. 07-15116 (9th Cir. Dec. 13, 2007). At the end of its opinion affirming the denial of a preliminary injunction, the court notes that the appellant, Global Horizons, would have been better off pressing on with its permanent injunction claim while the appeal was pending rather than dragging its feet in the district court while hoping to get the Ninth Circuit’s views on the merits of the case: Finally, we recognize that in the eleven months since Global Horizons filed the present appeal, the company has taken very few…
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Consumer Attorneys Sue Supreme Court over Case Publication Rules
Newport Beach personal injury firm Bisnar | Chase announced on its California Injury Blog that it has filed suit against the California Supreme Court and a district of the Court of Appeal. While not 100% clear from the post, it appears that the firm is representing a personal injury client who alleges his due process and equal protection rights were violated by the Court of Appeal’s failure to publish its decision reversing a judgment after jury verdict in his favor against Southern California Edison. Specifically, it appears the Court of Appeal — presuming I tracked down the right decision on Westlaw — reversed the award because it found as a…
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One for the Little Guy . . . So Far
Professor Martin at California Appellate Report notes an interesting angle that I missed in Holcomb v. Wells Fargo Bank, N.A., case no. G037638 (4th Dist. Sept. 20, 2007): Holcomb is a pro se appellant who prevails against a corporate giant on the appeal. Mr. Holcomb succeeds in partially reversing the trial court’s order sustaining Wells Fargo’s demurrer. There’s still a long road ahead for his case, of course. Time to look for a lawyer, I think.
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Peremptory Challenges to Appellate Justices and Posting of Draft Appellate Opinions
Don’t get too excited! The title of this post does not reflect changes to the Code of Civil Procedure. Instead, the title summarizes two of Nine Ideas for Improving the Administration of Justice offered by Los Angeles attorney Edwin B. Stegman in his guest column in the September 2007 California Bar Journal. Specifically, Stegman suggests the following: 3. We desperately need a CCP §170.6-type peremptory challenge of incompetent and unreasonable appellate justices and divisions. *** 7. Before oral argument, attorneys should be permitted to review research attorneys’ notes and appellate draft opinions. There is no advantage to secrecy. In some courts, research attorneys make the decisions. Sometimes they make mistakes.…
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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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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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Some Appellate Law Reminders Coming Up
Last week saw several published decisions with good discussions of appellate procedure and jurisdiction. The most in-depth is the Ninth Circuit case I blogged about here, but there are several California decisions to note. I finally got a chance to catch up on some of them over the weekend, and will post about them in the next few days. (They ought to remain good law for at least that long!) They are great reminders of some lesser-known rules applicable in unusual situations.
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FRCP Amendments Approved and Transmitted to Congress
The Supreme Court approved amendments to the Federal Rules of Civil Procedure and transmitted those amendments to Congress on April 30. They will take effect December 1, 2007 unless Congress legislates their rejection, modification, or deferral. Rules 1-86 were “restyled” — revised with the intent to make them easier to read and understand without substantively changing them. For example, rule 59, governing new trial motions, is amended so subsection (a) is changed from a single, lengthy paragraph into paragraphs (a)(1)(A), (a)(1)(B), and (a)(2). Not only easier on the eyes, but much easier to comprehend. The amendments contain substantive changes as well, but none directly relating to the rules regarding entry…
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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…