• Criminal Justice Reform,  Habeas Corpus,  Judges,  Legal Technology

    Appellate judge Alex Kozinski addresses the dangers of unsettled science in the courtroom

    Or, as the headline over Judge Kozinski’s opinion piece in today’s Wall Street Journal calls it, “voodoo science.” And what this justice on the Ninth Circuit Court of Appeals (a federal appellate court) has to say has nothing to do with global warming (at least not directly). Writing on a report to be released by the Obama administration today from the President’s Council of Advisors on Science and Technology (PCAST), Judge Kozinski calls for lifting, or at lease easing, restrictions imposed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) on federal court review of state court criminal judgments, because the report finds that many of the scientific methods used to convict…

  • California Procedure,  Judges,  Reconsideration

    Don’t treat one superior court judge as the reviewing court for another

    Writs and appeals are sometimes not the only routes (or even the preferred routes) to relief from an adverse order or judgment. Motions for reconsideration, post-trial motions for new trial or to vacate the judgment, and motions to set aside a judgment all have the possibility of getting you a “reversal” of sorts without ever leaving the superior court. I’ve written before about how a superior court judge may change a prior interim ruling on his own motion, even when the decision to do so is triggered by a faulty motion for reconsideration. The chief limitation on this practice is that, in most cases, one judge on a superior court…

  • Judges,  Legal Technology

    Federal Judge: Appellate Judges Know Nothing About Tech

    Those words after the colon come straight from the headline at Bloomberg News, where you can treat yourself to a 40-minute interview with federal district judge Shira A. Scheindlin of the United States District Court for the Southern District of New York, conducted at the 2015 Big Law Business Summit. The Bloomberg headline may exaggerate Judge Sheindlin’s position somewhat. Her comments on technology are directed mostly to the technology involved in discovery of electronically stored information (“ESI”). Given that she is referring to ESI discovery, her view on appellate judges’ knowledge is neither shocking nor insulting. As in California sate courts, most discovery rulings are not immediately appealable. They may…

  • 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)…

  • 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…

  • 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…

  • California Court of Appeal,  California Courts,  Courts,  Judges

    Four added to pool of prospective First District Justices

    The Recorder reports on three judges Governor Brown has asked to have evaluated for vacancies on the First District Court of Appeal. Brown has asked the State Bar’s Commission on Judicial Nominees Evaluation to vet San Francisco Superior Court Judge Marla Miller, Contra Costa County Superior Court Judge Diana Becton and ACLU staff attorney Linda Lye for openings on the San Francisco-based appellate court. Therese Stewart of the San Francisco city attorney’s office is also being evaluated by the commission. Of course, everything will remain up in the air for a while. Submission of a name to the commission usually indicates serious interest on the governor’s part, though there are…

  • California Court of Appeal,  California Courts,  California Supreme Court,  Judges

    Riverside Appeals Court goes 3-for-3 with the Supremes

    That’s one of the interesting things you can learn from the chart that accompanies a front page article in yesterday’s Daily Journal. District 4, Division 2, sitting in Riverside, is one of only two divisions to have a perfect record on the review of its decisions by the California Supreme Court in the last twelve months. The other is First District, Division 1, which had only one case reviewed. Three divisions had no decisions reviewed by the Supreme Court in that period. While Division 2 in Riverside was batting a thousand, their Fourth District colleagues in Division 3 (Santa Ana), batted .ooo, getting reversed on all five cases reviewed from…

  • Events,  Judges

    Highlights from an Evening with the Division 6 Justices

    Picking up CLE credit is never as easy or fun as an evening with the justices of Division 6, which I and a few dozen other lawyers did last night at the courthouse for District 2, Division 6 in Ventura. The discussion was very informal, but there was still a lot to be learned — or in some cases, have confirmed. Much of the evening was give-and-take. I tried to take detailed notes, but I can only write so fast. So, to avoid misquoting anyone, I’ll stick to paraphrasing and, for the most part, will not attribute comments to any particular person. My intent is not to deprive anyone of…

  • Judges,  Legal Writing

    A different kind of “three strikes and you’re out”

    A recent opinion from the court of appeal demonstrates that while redundancy is usually something to be avoided, sometimes it’s a good way to make a point. [Plaintiff] persistently misstates the central issue in the case by insisting, here and in related appeals, that the question presented is whether a defendant charged with trade secret misappropriation “may escape liability” by establishing that it “does not comprehend the specific information comprising the trade secrets.” This is not an issue, let alone the chief issue, in these matters. The posited question may be answered in the negative-as indeed it must-without resolving any aspect of this case. It is a smokescreen, a red…

  • Constitutional Law,  Immigration,  Judges,  Search & Seizure

    Judge Bea calls out his colleagues

    In a dissent from a Ninth Circuit denial of en banc review in Lopez-Rodriguez v. Holder, case no. 06-70868 (9th Cir. Aug. 7, 2008, r’hng en banc denied March 27, 2009), a case concerning the application of the exclusionary rule to civil deportation proceedings, Judge Bea authors an opinion that puts his view of the panel decision — specifically,the reasoning by which the panel reached its decision — rather bluntly.   In [INS v. Lopez-]Mendoza [, 468 U.S. 1032 (1984)], the Supreme Court clearly held the exclusionary rule does not apply to bar illegally procured evidence from admission in a deportation hearing. Mendoza, 468 U.S. at 1050 (holding that the “balance between costs and benefits comes out against…

  • Events,  Judges

    Another Supreme Court Justice Meet-Up at Pepperdine

    After hosting Justice Alito and Justice Scalia, Pepperdine recently hosted an event with Justice O’Connor. Read appellate attorney Ben Shatz’s account of the Justice O’Connor event at the Los Angeles County Bar Association blog, en banc, where you can also find his previous posts on the Justice Alito and  Justice Scalia events.

  • Events,  Judges

    Scalia and Starr at Pepperdine

    Too late, you’ve missed it.  But if you want to read all about the “conversation” between Dean Kenneth Starr and Justice Antonin Scalia held at Pepperdine yesterday, check out the very detailed write-up of the event  by appellate attorney Ben Shatz at En Banc.  Consider Ben the Pepperdine bureau chief, as he also had a good write-up last August on Justice Samuel Alito’s appearance there.

  • Judges,  Media and the Law

    Judge Kozinski’s “Dirty” Pictures May Not Be So Dirty

    Remember the big “to do” about Judge Kozinski having posted material from an obscenity trial on his website?  My prior coverage concentrated mainly on how this could affect his qualification to preside over the trial, and noted the interesting fact that Kozinski, an appellate judge, was presiding over a trial at all. There is another aspect to the media coverage that I did not give much thought to, and that is the way that the media painted the materials as sexually graphic and/or obscene.  Considering the mischievousness that is usually attributed to Judge Kozinski, I figured that would be water off a duck’s back.  And while it might have been…

  • Appeals,  Judges

    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…

  • Appeals,  Judges,  Legal Humor

    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…

  • Judges,  Mandamus/Prohibition,  Stays & Supersedeas

    Got a stay? Challenge the judge anyway!

    Under Code of Civil Procedure 170.3, subdivision (c), a party may apply to disqualify the trial judge for cause, but must submit the statement of objection “at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification.”  In Tri Counties Bank v. Superior Court (Amaya-Guenon), case no. F055084 (5th Dist. Oct. 28, 2008), Tri Counties tried to convince the court of appeal that its seven-month delay met the “earliest practical opportunity standard” under the circumstances of the case.  No dice.  And in rejecting that contention, the court of appeal makes an interesting exception to a stay of proceedings in the trial court. Tri Counties asserted that the the judge…

  • California Procedure,  Judges,  Juveniles

    Peremptory Challenge to Judge After Remand Has Its Limits

    Virtually every civil litigator knows about the procedure afforded by Code of Civil Procedure section 170.6 for disqualification of the judge assigned to the case.  Commonly called “papering the judge,” the requirements of the section are so meager that such challenges are also referred to as “peremptory” challenges, though not technically so (to my mind), and my guess is that any civil litigator who has practiced for more than a few years has invoked section 170.6 at least once. Maybe you didn’t know that this disqualification procedure is available even after reversal on appeal.  Subdivision (a)(2) of section 170.6 provides A motion under this paragraph may be made following reversal…

  • Judges,  U.S. Supreme Court

    It’s Kennedy’s Court

    So says UC Irvine School of Law Dean Erwin Chemerinsky about the U. S. Supreme Court in his front-page piece in this month’s California Bar Journal. Simply put, on issues that are defined by ideology, the conservative position prevails in the Roberts Court except when Justice Kennedy joins with Justices Stevens, Souter, Ginsburg, and Breyer. Occasionally this term, Justice Stevens or Justice Breyer joined with the five most conservative justices to create a 6-3 or 7-2 vote for a conservative result. But never did one of the four most conservative justices — Chief Justice Roberts and Justices Scalia, Thomas and Alito — vote for a more liberal result in a…

  • Events,  Judges,  Legal Writing

    Pepperdine’s Justice Alito Event — Video Available

    Pepperdine has video of the conference on judicial opinion writing that I commented on here (actually, I was commenting on Ben Shatz’s write-up of the event).  Here’s the description accompanying the video: The Honorable Samuel A. Alito, Jr., associate justice of the United States, spoke on “Lawyering and the Craft of Judicial Opinion Writing” at the School of Law on Wednesday, July 30, to a crowd of more than 200 students, alumni, law professors, journalists, judges, and special guests. Justice Alito was joined by The Honorable Michael W. McConnell, United States Appellate Judge for the Tenth Circuit; The Honorable Walter E. Dellinger III, former United States Solicitor General; Pepperdine School…

  • Judges,  U.S. Supreme Court

    Mistakes in Big SCOTUS Cases? (UPDATED)

    Image via Wikipedia I ran across a couple of interesting posts claiming that various SCOTUS justices got the facts just plain wrong in at least three significant cases, including two very recent ones. Make of them — both the blog posts and the mistakes — what you will. CAAFlog, a military law blog, reports that both the majority and dissenting SCOTUS justices in Kennedy v. Louisiana, case no. 07-343 (June 25, 2008), were wrong in noting that the federal government had not made child rapists eligible for the death penalty. According to CAAFlog, the Uniform Code of Military Justice makes child rapists in the military eligible for the death penalty.…

  • Judges

    The Ninth Offers a Party a Hint on a “Non-Issue”

    It’s hardly uncommon to see a reviewing court remanding a case to give some pointers to the trial court and even to the parties or their counsel.  But it’s usually across-the-board advice or a warning against future misconduct. I thought the advice offered in Duarte v. Bardales, case no. 06-56808 (9th Cir. July 1, 2008 [order denying rehearing and rehearing en banc]) was a little different and arguably partisan.  In the original opinion, the Ninth had reversed the trial court’s denial of a motion to vacate, under Federal Rule of Civil Procedure 59(e), of a judgment denying Duarte’s “petition for the return of her children pursuant to the Hague Convention on the Civil Aspects…

  • Judges,  Oddities

    It’s not just Bill Clinton . . .

    . . . who says it all depends on what the meaning of “is” is. A Ninth Circuit opinion filed today begins: “This appeal presents the single, seemingly straightforward question whether the word ‘is’ really means ‘is,’ at least as that word is employed in 25 U.S.C. § 81.” And it turns out the answer isn’t that easy: Motivated largely by the plain meaning of Section 81—but after also taking into account related statutes, relevant legislative history and the language of the contract itself—we conclude that the word “is” means just that (in the most basic, present-tense sense of the word)[.] As if to prove the answer isn’t simple, there’s…

  • Judges

    You’re Probably Wrong about How Judges Think

    Me, too, for that matter.  That’s what Judge Posner‘s blurb on the jacket of his book, How Judges Think, seems to say.  It seems to me that most commentators tend to agree that judges are often inscrutable on the bench, but many who advise on legal writing seem to assume they know what the judges want.  Do we?  Says Judge Posner: [M]ost judges are cagey, even coy, in discussing what they do. They tend to parrot an official line about the judicial process (how rule-bound it is), and often to believe it, though it does not describe their actual practices. . . This book parts the curtain a bit. You…

  • Judges

    A Glitch In Kozinski’s Presiding over Obscenity Trial?

    Ninth Circuit Chief Judge Alex Kozinski may be feeling a little embarrassed today. According to this piece in the Los Angeles Times, he accidentally posted materials from an obscenity trial on a publicly accessible portion of his web server that he thought was for private storage. Alex Kozinski, chief judge of the U.S. 9th Circuit Court of Appeals, acknowledged in an interview with The Times that he had posted the materials, which included a photo of naked women on all fours painted to look like cows and a video of a half-dressed man cavorting with a sexually aroused farm animal. Some of the material was inappropriate, he conceded, although he…

  • Judges

    Justice Gilbert Profiled

    Justice Arthur Gilbert, presiding justice of the Second District Court of Appeal, Division Six, was profiled in the Palisadian Post last week.  This comes not long after he was honored with The Beacon of Justice Award. Thanks to Curt Cutting of California Punitive Damages blog for the tip.

  • Blogging,  Judges

    Judges Read Blogs

    I’ve noted before some intersections between actual law practice and blogging. There was the blogging jury foreman and the blog where lawyers complained about judges, for example.  There are even some blogs by judges (look in the left sidebar). Now, we have at least anecdotal evidence that judges are reading blogs. Texas appellate lawyer D. Todd Smith posts at his Texas Appellate Law Blog about his chance encounter with a blog-reading judge at a professional event. In fact, the judge is not just a blog reader, but a regular reader of Smith’s blog. So, now I’m really curious. I’m going to fiddle around with some of the poll gadgets for…

  • Ethics,  Judges

    A Conspiracy Theorist’s Delight

    In In re Complaint of Judicial Misconduct, case no. 07-89012 (Judicial Council of the 9th Cir. May 14, 2008), the complainant was an attorney who was also a plaintiff in a civil action. He filed a complaint against both the district judge and the magistrate judge to whom the district judge referred the civil case. The title of this post relates to the charges made by the complainant. The complainant alleged misconduct regarding both judges with respect to discovery rulings and their decisions to continue with the case following his filing of a notice of appeal. Chief Judge Kozinski’s order characterizes these charges as challenges to the rulings themselves. Complainant…

  • Judges,  Ninth Circuit

    Chief Judge Kozinski Profiled

    Image via Wikipedia All my California readers undoubtedly know this already, but for the benefit of readers elsewhere in the Ninth Circuit, here’s a link to the cover article of this month’s California Lawyer magazine, which is a profile of Chief Judge Alex Kozinski. You do not have to be a subscriber to get to the article.