Image via Wikipedia That’s just one piece of advice offered by Seventh Circuit Judge Richard Posner in his turn at the ABA Section of Litigation’s “Tips from the Trenches” column, titled “Convincing a Federal Court of Appeals.” Attorneys who fail to take into account that the appellate judges are not specialists and have a limited time to deal with each case are making a mistake; a judge “depends on the lawyers to provide enough background in the field out of which the case emerges to orient” the judge. Tip no. 2: don’t think you can win by “rubbing the judges’ noses in the precedents.” This terrific column provides lots of practical…
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Narrowing Appellate Issues
D. Todd Smith makes a good point at Texas Appellate Law Blog in the context of explaining why he likes oral argument: [O]ne of my favorite aspects of oral argument is that it forces you to distill your case down to the barest elements. As the appellant, if you can’t persuade the court based on your best two or three points—which should all be covered thoroughly in your brief—you’re probably going to lose. Hear, hear. I think the same approach pays off in briefing. Rarely do you read an opinion that refers to a “scattershot” or “shotgun” approach by the appellant where those terms aren’t used (at least implicitly) insultingly…
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Reasonableness Governs Accidental Shooting Inquiry
Image via Wikipedia There’s an important legal point in Torres v. City of Madera, case no. 05-16762 (9th Cir. May 7, 2008). But before I could get to it, I had to get by my amazement at the facts, which are horrifying. This Section 1983 action was brought by survivors of an arrestee who, while handcuffed and in the rear seat of a patrol car (and screaming and kicking at the back window), was shot and killed by a police officer who mistakenly unholstered and fired her Glock semi-automatic pistol instead of her Taser M26 stun device. The Court of Appeals called her Glock (a Glock is pictured right, though…
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Welcome, California Lawyer Readers!
Welcome to all first-time visitors led here from the mention of me and the blog in the May 2008 California Lawyer article, Debate Heats Up Over Unpublished Opinions. (For those who haven’t seen the piece, it highlights the recent case of Hild v. California Supreme Court (No. C-07-5107-JCS (N.D. Cal. filed Oct. 4, 2007)), which the article describes as arguing “that the state’s publication rules violate Californians’ due-process and equal-protection rights by creating ‘a de facto policy of refusing review of unpublished decisions in civil cases.'” The piece discusses the case in the context of the ongoing debate over whether the rules should allow citation to unpublished opinions.) My original…
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Red Light for Jurisdiction
Most lawyers are familiar with the general rule that a trial court loses jurisdiction to act in a case upon the filing of a notice of appeal. There are actually a surprising number of exceptions to that rule . . . but the amended judgment in People v. Bhakta, case no. B190437 (2d Dist. May 6, 2008) is not one of them. This was a public nuisance case brought by the People against the owners of a downtown motel under the “Red Light Abatement Law” to abate prostitution activity at the motel. The court entered a permanent injunction, and by stipulation the People were given an extended time to apply…
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Low-Tech Proofreading
Redlines, spell checking, auto-numbering, auto-capitalization, auto-page numbering . . . has high-tech document creation made us lazy proofreaders? For some great low-tech proofreading tips, see Beyond Redlines and Spell-Check: Proofreading Tips from the Dark Ages (PDF Download) from Delaware attorney John J. Paschetto, published in the February 2008 issue of The Practical Lawyer magazine Hat Tip: Legal Writing Prof Blog.
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The Non-English-Speaking Witness
“Tower of Babel” Image via Wikipedia The law is a profession where words really, really matter. Sometimes, ensuring the same meaning across languages can be difficult, especially in the absence of an available literal translation. Attorneys who find themselves dealing with witnesses who don’t speak English at all or not well enough to communicate in court will want to to check out How to Work with Court Interpreters at Winning Trial Techniques. The post provides a 21-item checklist. both of things to do and things not to do, to ensure that you maximize the witness’s effectiveness. As with almost everything we do, preparation is key. About a third of the…
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Who Knows Why Some Parties Appeal?
Sometimes a decision just makes no sense, at least to someone looking at it from the outside. Such is the case with Profit Concepts Management, Inc. v. Griffith, case no. G039077 (4th Dist. May 5, 2008). Oh, the merits make sense. California-based Profit Concepts sued former employee Griffith in California under an employment agreement that contained an attorney fee provision. But Griffith lived in Oklahoma and successfully moved to quash service for lack of personal jurisdiction. The trial court awarded Griffith contractual attorney fees as the prevailing party. Reasonable enough. The court rejects Profit Concept’s argument that because the lawsuit, which it had resumed in Oklahoma, left contract issues pending…
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Brief Upgrade Outage this Weekend
Time to upgrade WordPress again, this time to version 2.5.1. I’ll be doing that this weekend, so the blog may be unavailable briefly on Saturday or Sunday. I tend to do these things in the wee hours, when there’s less traffic, to minimize the disruption. But you never know.
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Clearly, this is Blatantly Obvious
I was searching for an old post at Wayne Scheiss’s legal-writring blog and accidentally ran across this nugget from 2005 on use of the word “blatant”: I’m starting to put it in the same category as “clearly” and “obviously.” It does not persuade. It only draws attention to itself as an effort to sound persuasive. Anytime a word draws attention to itself, it’s not good. And the attention it draws is therefore usually negative attention. I won’t use it in my writing.
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JALWD Online
From Ray Ward at the (new) legal writer: Thanks to Legal Writing Prof Blog, I learned that the entire Journal of the Association of Legal Writing Directors is on-line—every issue, every article, in both HTML and PDF. If you’ve never read the JALWD, do yourself a favor and pay a visit. He directs you to Legal Writing Prof Blog for instructions on how to submit to JALWD “[i]f you’re brave enough to actually want to write an article” for them. One should be prepared, I assume, for some extensive constructive criticism!
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Update on Free Online Legal Research
Robert Ambrogi’s Lawsites has this update on free on-line case law resources. The most notable link is to a review of PreCYdent, which may be living up to its hype as “the Google of legal research.” Says the reviewer: I was stunned by the results of my search [for “in personam jurisdiction”] on PreCYdent. The top six cases were the leading U.S. Supreme Court cases I studied in Prof. Reimann’s jurisdiction class. Each of them is fundamental to an understanding of the application of personal jurisdiction in federal courts. I have never seen a such a highly relevant set of search results on any electronic case search engine. Not in…
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Sad to Go with Happy – “Decision of the Day” is No More
I almost feel a little guilty celebrating my blogging anniversary today reading that Robert Loblaw at Decision of the Day is hanging up his keyboard. His announcement says he is saying “farewell to the frenzy” and describes the history of his blog. Many law bloggers, including yours truly, will miss his writing, which I once described as “Gold . . . Pure Gold.” He’s done a stellar job for years, If I tried to keep up the pace he did, I probably would have been beaten into the ground long ago. When I put his blog in my top 10, I wrote, “I still can’t figure out how Loblaw gets…
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Happy Birthday to The California Blog of Appeal!
Image via Wikipedia per GNU Free Documentation License The California Blog of Appeal launched at 3:12 pm on April 30, 2007, with a first post entitled “The California Blog of Appeal Will Now Come to Order!” (Seemed clever at the time, anyway.) I don’t think I’ve wandered far from the vision I described in that post. So, if I may be self-congratulatory for a few minutes . . . This is the 539th post on this blog. The 539 posts span 135 categories (I may be going a bit overboard on cateogrization) and altogether contain more than 164,000 words. That’s the equivalent of nearly a dozen maximum length civil appellate…
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Blogroll Addition: Judgment Day
I discovered the new blog Judgment Day a couple of weeks ago, when my stats page showed that it linked to The California Blog of Appeal. The blogger there is an anonymous attorney who dies work as appointed counsel on criminal appeals in New York and goes by the nom de blog (or is that nom de blogue?) Blakely, after Blakely v. Washington (2004) 542 U.S. 296 . Notwithstanding his (or her) New York home base, Blakely has already had a number of posts relevant to California practice. Welcome aboard, Blakely. And congratulations on the second-best blog name ever (according to me, that is).
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Attorney Fee Program Coming Up in Los Angeles
One of the organizers of an upcoming attorney fee CLE program in Los Angeles was lucky enough to reach me by phone this morning before I was too embroiled in my work, and asked if I would be kind enough to help publicize the program. Well, I’m a sucker for a request like that, and especially so in this case, since attorney fees are of particular interest to me (and The Pro Bono Road to Riches is still one of the most traffic-generating posts I’ve had). So, here’s the skinny: Date: June 19, 2008 Time: noon- 5 pm Place: Southwestern Law School (Los Angeles) This description of coverage comes straight…
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Scalia and Garner Together for $29.95
For their book, of course. (Mr. Garner’s speaking fees are considerably higher, I’m sure.) Making Your Case: The Art of Persuading Judges is scheduled for release today. An article describing Justice Scalia’s and Mr. Garner’s collaboration is here. Hat tip: CAAFlog.
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Light Posting Week
Things are a little crazy for me this week, so posting will be light. In fact, I’m not sure I’ll post anything other than the posts I already have in the queue to publish throughout the week. That means I won’t have any breaking news on cases. But I will have a few posts trickling out throughout the week, including a special anniversary post on Wednesday.
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i-Cyber-Meta-Digital Law
This post highlights a post I included in Blawg Review #155 and a related post I ran across since then. Both concern how to stay out of trouble regarding electronic data. The first, featured in my previous post, is The Multipass Erasures Myth from EDD Update, a blog about electronic data discovery. Just how much “scrubbing” of your hard drive does it take for that data on your hard drive to be unrecoverable? I think you’re going to be surprised at the answer. The second is a post on the ethics of mining metadata in documents received from adverse parties. What is metadata? Well, the Wikipedia article on metadata is…
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If It was Good Enough for the Framers . . .
Image from Wikipedia Ray Ward posted several months ago that starting a sentence with a conjunction is okay in an appellate brief. I wholeheartedly agree. I think it can make a sentence more powerful. Ward justifies the practice in part because the Unites States Constitution includes sentences starting with conjunctions and concludes, “So if it’s good enough for the U.S. Constitution, it’s good enough for that brief you’re working on.” But don’t take that logic too far. One of the constitutional excerpts Ward provides is Article II, section 1: “And they shall make a List of all the Persons voted for, and of the Number of Votes for each…. But…
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Beyond E-Filing
Wagner v. Wagner, case no. B197703 (2d Dist. Apr. 23, 2008) is more than just the latest installment of a familiar sad story: siblings fighting over Mom’s estate. It introduces the secret mental claim. Claire moved in with and took care of her Alzheimer’s-stricken mother for the four years preceding her death. Claire was the successor trustee to her mother’s living trust, so she became the trustee upon her mother’s death. Brother Kent grew impatient and dissatisfied with his sister’s administration of the trust, and convinced her to hire a lawyer. At a meeting of Kent, Claire, and the attorney, Claire told Kent that she intended to file a claim…
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Boston Legal and the Supremes
Image via Wikipedia From Harmful Error: [Tuesday] night’s episode of Boston Legal included a fairly amazing, even if a tad bit on the fantasy end of the spectrum, speech to the US Supreme Court, before actors who look very much like the real justices. For more details and alink to the 10-minute clip on Youtube, see the post. If I run across any more blogs posting about the episode, I will link to them from this post. A while back, I told you about a lawyer who blogs about episodes of The Office, tallying up the liability incurred in each episode. Maybe someone — someone with a lot of time…
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Join the Legal Writing Institute!
Legal Writing Prof Blog invites everyone to join the Legal Writing Institute. LWI is free and open to anyone interested in legal writing or the teaching of legal writing. Go to the membership page to sign up.
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Ninth Circuit Amends Garcia on Appellate Jurisdiction
According to Ninth Circuit Blog, the Ninth Circuit “came to its jurisdictional senses” with its amended opinion in U.S. v. Garcia, case no. 05-30356 (9th Cir. Nov. 19, 2007, amended Apr. 17, 2008). While I might have said that a little more gently, I agree with the sentiment. I covered the relevant holding regarding appellate jurisdiction in my original coverage: The two defendants challenging their sentences in this case claimed that the trial court erred even though the sentences imposed were within the ranges stipulated in their respective plea agreements made under Federal Rule of Criminal Procedure 11(c)(1)(C). Both defendants contended that the trial court’s miscalculation under the sentencing guidelines…
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An Easy Cure for Citation Anxiety
Legal Writing Prof Blog links to a paper called Reducing Citation Anxiety, which is presumably intended to put one’s mind at ease regarding citation format in their legal writing. I won’t have time to look at it, but I already have a way of overcoming that anxiety: I keep a copy of The California Style Manual close by as I draft.
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New Evidence on Appeal?
Odd as it sounds, it is possible in exceptionally rare circumstances. And I do mean exceptionally rare, which is why you almost never see it addressed in the cases. In yesterday’s In re Valerie W., case no. D051056 (4th Dist., Apr. 4, 2008, ordered published Apr. 21, 2008), in which appellants sought reversal of judgments terminating their parental rights, the minors’ counsel asked the court of appeal to take post-judgment evidence, in the form of her declaration, pursuant to Code of Civil Procedure section 909. Section 909 is a little dense in form (it would benefit from being set forth in subdivisions), but worth reading in full (emphasis added): In…
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Blogroll Addition: Have Opinion, Will Travel
When I started this blog nearly a year ago, I wanted my blogroll to include blogs written by judges. I searched high and low for them, with very few results. Not too long ago, I ran across Have Opinion, Will Travel, a blog by an anonymous appellate judge of unknown jurisdiction. The judge’s blogging goes beyond law, but the legal issues discussed are often interesting. The blogger provides a particularly interesting view on the role of the appellate judge, posted prominently at the top of the blog: Appellate judges sit above the fray as the battle unfolds beneath and when the smoke clears and the dust settles, they descend from…
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A Reader’s Perspective on Appellate Briefs
It’s one of the first things we’re taught in a law school writing class: write to your audience. Clients, other attorneys, trial judges and appellate courts are four possible, and distinct, audiences, and you write differently for each of them. So insight into what that audience is looking for, and how it approaches your document, is valuable. Professor David Sorkin sets out to provide insight for writers of appellate briefs in his article, Appellate Briefs — A Reader’s Perspective. Its very brief abstract: Appellate briefs should make a court want to rule in the advocate’s favor, and should make it easy for the court to do so. An effective brief…
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The Limits of Wende
Anyone who does criminal appellate work by appointment for indigent defendants is familiar with People v. Wende (1979) 25 Cal.3d 436. Wende requires the court of appeal to conduct an independent review of the record for error when appointed counsel files a brief representing that he or she has reviewed the record and found no arguable issues. At least, this review is required on the defendant’s first appeal as of right. People v. Dobson, case no. F053531 (5th Dist. Apr. 16, 2008) teaches the limits of Wende. Dobson was found not guilty by reason of insanity and committed to a state mental hospital. Six years later, he was released to…
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Why Use a Big Firm on Appeal?
D. Todd Smith (pictured) opines at Texas Appellate Law Blog on an article at Technolawyer that offers five reasons why general counsel tend to stick with large firms despite “rumblings about how high hourly rates and associate salary increases may lead them elsewhere.” Specifically, he asks: “Do these reasons apply when a GC is looking for appellate counsel?” He then goes down the list of reasons and concludes that, for the most part, they should not apply to a general counsel’s selection of appellate counsel. In the process, he notes some key distinctions between trial practice and appellate practice that many may not be aware of. Of course, all you…