Here’s an interesting Howard Bashman’s column that explores the phenomenon of third justices who “concur in the result” without further comment on the majority opinion. NOTE: Somehow this post got marked “private,” so I’m not sure it ever showed up on the blog before. But it’s possible it was posted for a while befopre it got marked “private,” in case you’re looking for an explanation for any deja vu you’re experiencing.)
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Second Appeal for Presentation Input
NOTE: I am going to keep this post at the top of the blog for a few days, probably until the end of the week. New posts will appear below this one until then, so if you see this post at the top, scroll down to make sure you haven’t missed anything. In early February, I requested input for inclusion in a presentation I am making soon. Thanks to all who commented and who publicized the request on their own blogs. The presentation is now less than two weeks off, so I am making a second request for input by reproducing the post in its entirety in the block quote.…
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Producer’s Lawsuit Crashes
Did you ever wonder while watching the Academy Awards presentation on TV just who gets to go up on stage and receive an award as a “producer” when a film wins for best picture? Wonder no more. The procedure for identifying producers entitled to share in the award is succinctly explained in Yari v. Producers Guild of America, Inc., case no. B196817 (2d Dist. Mar. 25, 2008)., in which Yari runs up against the limitations on judicial review of a private organization’s decision-making processes. Yari contended he should have received an award as a producer for the 2004 best film award winner Crash. The selection process involves both the Guild…
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Federal Question Jurisdiction and the Federal Arbitration Act
Anyone who reads this blog regularly knows I am a jurisdiction geek, so a post about Federal Question Jurisdiction and the Federal Arbitration Act at Civil Procedure Prof Blog caught my eye. The post links to an article on the topic at Social Science Research Network (SSRN). UPDATE (3/26/08): Texas Appellate Law Blog has an interesting post up on the related issue of whether parties can contract for judicial review of arbitration decisions under the FAA.
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Order or Judgment? It can make a big difference!
More wrangling over what triggers a deadline to appeal. Several weeks ago, I reported on Adaimy v. Ruhl, case no. B193745 (2d Dist. Feb. 28, 2008), in which the court of appeal held that serving just one of multiple attorneys representing a party with a notice of entry of an order denying a motion for new trial suffices to trigger the deadline to appeal. In this order modifying the opinion without change in the judgment and denying rehearing, the court tacks two paragraphs on to its original opinion that lead me to the question posed in the title of this post. Though the original opinion refers to an August 7,…
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Oral Argument Resources
On the internet, it seems a lot easier to find legal writing advice than to find advice for appellate oral argument. I was pleased last week to turn up an old Howard Bashman column on preparing for oral argument, but Legal Writing Prof Blog has collected that link and five others, including one specific to criminal cases, at oral argument: a bouquet of links.
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Wayne Schiess on the Question Presented
In a post entitled “Defending the single-sentence question presented:,” Professor Wayne Schiess confesses in the first line of the post: “I can’t.” Schiess pithily takes on the commonly asserted justifications of brevity and tradition. And he’s soliciting thoughts from those who prefer single-sentence questions presented.
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ADR/Appellate Crossover
Thanks to Victoria Pynchon at Settle it Now Negotiation Blog for linking to two recent posts on this blog. I’m announcing this in a post because the trackbacks from her posts are not showing up in the comments to my posts as they should, which may cheat her of traffic from people who might be interested in her mediator’s viewpoint on my recent posts (or who might be interested in a mediation blog generally). My recent comment that some justices at appellate oral argument are actively looking to have their minds changed made Victoria wonder how lessons from the appellate arena might benefit parties in mediation who need to change…
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Is Summary Judgment Unconstitutional?
That’s surely a heretical thought to many. And not one that would have popped into my head had reader Joe Norman not commented on my post regarding new trial motions following summary judgment by sending a link to an article by University of Cincinnati College of Law professor Suja Thomas entitled “Why Summary Judgment is Unconstitutional.” Before you laugh off that idea, you ought to read the abstract at that link. An excerpt: While other scholars question the use of summary judgment in certain types of cases (for example, civil rights cases), all scholars and judges assume away a critical question: whether summary judgment is constitutional. The conventional wisdom is…
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Effective Oral Argument Preparation
It’s been a while since I’ve posted any advice on oral argument, so I went Googling last night and turned up this gem from an old Howard Bashman weekly column at Law.com. It’s not so much about the argument per se as it is the preparation for oral argument, for good reason: Appellate judges commonly report that oral argument changes their mind about the outcome of an appeal in only a small fraction of cases. However, I’ve always viewed that information as an invitation to become even more prepared to deliver an effective appellate oral argument. Appellate judges may have a draft opinion prepared, and may rarely change their minds…
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An Odd Request
Not from me. From the plaintiff homeowners association in Pacific Hills Homeowners Assn. v. Prun, case no. G038244 (4th Dist. Mar. 20, 2008). The plaintiff association prevailed at trial, getting an injunction requiring the defendant to comply with covenants, conditions and restrictions and architectural guidelines by modifying a structure on their property. So far so good, but the judgment also required the homeowners association to pay two-thirds of the cost, so long as certain conditions were met. So when the defendant appealed, the association cross-appealed, arguing that the court was wrong to make it responsible for costs in moving the gate. The association then asserted — apparently in its briefs,…
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A Dilemma for Some Defendants Who Seek to Arbitrate
It’s a long-held rule in California that a defendant sued on a contract may recover attorney fees pursuant to a provision in the contract even if the defendant prevails on a theory that he was not a party to the contract or that the contract is nonexistent, inapplicable, invalid or unenforceable. The rule exists in order to further the purpose of Civil Code section 1717, which is to make unilateral fee provisions reciprocal. If a defendant could not recover fees after successfully defending on these grounds, then the ability to recover fees would be limited to a prevailing plaintiff, which would frustrate the the public policy of mutuality underlying the…
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New Trial Motions after Summary Judgment
Can you move for a new trial when your case was disposed of by summary judgment? This question undoubtedly causes some degree of cognitive dissonance in many lawyers: a new trial when there was no trial? But the answer is “yes.” A reminder comes in the form of Doe v. United Airlines, case no. B192865 (2d Dist. Mar. 20, 2008). After United successfully moved for summary judgment, Doe moved for a new trial on the ground of “newly discovered evidence” that purportedly raised a triable issue of fact precluding summary judgment. Not that it ultimately did her any good. The court of appeal holds that the trial court abused its…
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A Good Start
Good briefs frequently start with a statement that in itself “hooks” the reader by immediately arousing his interest and making him want to continue. The same goes for judicial opinions, I think. Chief Judge Kozinski accomplished that with his single-sentence opening paragraph in New Hampshire Ins. Co. v. C’est Moi, Inc., case no. 06-55031 (9th Cir. Mar. 20, 2008): “We consider the doctrine that’s on everyone’s lips: uberrimae fidei.” Made me read the rest of it, anyway. UPDATE (3/20/08): Professor Martin points out that this is the second published decision from the Ninth on the uberrimae fidei doctrine in just six weeks, so maybe that opening line was not only…
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Scope of Remand Limits District Court Authority
In United States v. Davis, case no. 06-10527 (9th Cir. Mar. 19, 2008), we have a case where the district court either didn’t realize its limitations or just didn’t read the mandate right. Whatever the cause, this case provides a succinct and to-the-point reminder of the point made in the title of this post. The Ninth originally remanded with instructions to strike a conviction and sentence on count four and for the court to determine if it would have imposed the same sentence if it had known that the sentencing guidelines were advisory rather than mandatory. The district court struck the conviction and sentence on count four, declared it would…
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This Case Name is Worth Blogging About After All
Several weeks ago, I clued everyone in to what I think is the best law firm name of all time. And I’ve also mentioned when an unusual case name has caught my eye. Then I ran across a case out of the Ninth Circuit this morning that I almost blogged about just because of the name. But it’s an in rem action, where names are often a little weird (usually currency, as in United States v. $1,201,894.38 in U. S. Currency”). Then I thought, “Nah, I just don’t get out much. Everyone’s going to think I’m crazy that this name is so unusual.” Then Robert Loblaw at Decision of the…
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Law Blog Directories
Sorry for the lack of posting recently. I got laid low by a virus that kept me working part time, at best, the first half of last week and at home on Thursday and Friday. So I’m easing my way back in with this easy post. I’ve added five law blog directories to the blogroll under the clever category heading of “Law Blog Directories.” Might be helpful if you’re looking for something specific in the law blogosphere.
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New Appellate Blog: “Appellate Review”
An anonymous third-year law student has gotten a head start on his appellate clerkship by starting a new blog in the last few weeks: Appellate Review. The writing is good, and if you enjoy this blog and others like Decision of the Day and California Appellate Report, I think you’ll like Appellate Review. It is now on my blogroll and one of the RSS feeds I will be checking daily. Hat Tip: Appellate Law & Practice
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Thorough Confusion Deprives Defendant of Right to Counsel
Confusion abounds lately. On the heels of my last post about a “hopelessly ambiguous” jury verdict comes a decision requiring reversal because the proceedings left the parties and trial court so “throughly confused” that the defendant was deprived of his right to counsel: People v. Earp, case no. B201309 (2d Dist. Mar 11, 2008). The trouble began when Earp tried to withdraw his no contest plea to possession of methamphetamine for sale. The trouble requiring reversal, that is. The real trouble started while Earp was released pending sentencing. He violated three conditions of his probation (from another offense) and then failed to appear for sentencing. He was arrested and convicted…
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Special Verdicts vs. Special Verdict Forms
Where a special verdict is hopelessly ambiguous as to whether it awards duplicative damages, the rule is that the trial court should ask the jury to clarify the verdict. But what if the jury is discharged before anyone objects to the ambiguity? The court of appeal reminds us in Zagami, Inc. v. James A. Crone, Inc., case no. D049563 (4th Dist. Mar. 10, 2008), that it depends on whether the ambiguity arises from the form of the verdict or the jury’s answers. Error in the form of the verdict is subject to waiver if no objection is made. But ambiguity created by the jury’s responses is not waived, even if…
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Car Towing and Due Process
Mary Clement is a responsible automobile owner. Though she hasn’t driven her 1981 Cadillac Eldorado Biarritz in seven years, she dutifully maintains the car’s “Planned Non-Operation” (PNO) status – an alternative to normal registration for cars that will not be driven on public streets nor parked in publicly accessible parking lots. Clement kept her Caddy parked in the parking lot of her residence – a hotel – with the permission of the owner. A Glendale police officer decided to tow it because it was illegally parked in a publicly accessible lot. When Clement sued under 42 USC § 1983 for deprivation of her due process rights, the police officer successfully…
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Attorney Fees in a $44 Case?
What do you suppose the high end of “reasonable” is for attorney fees in a successful lawsuit based on about $44 in damages? Supposing that $44 claim settled for $10,500? If you said attorney fees of $500 are about right, give yourself a gold star. In Harrington v. Payroll Services, Inc., case no. B198883 (2d Dist. Feb. 28, 2008), the trial court found that once class certification was denied, the case was so simple that plaintiff was not entitled to fees at all, let alone the $46k sought. The court of appeal reverses on entitlement to fees, finding they are statutorily mandated, but that $500 is reasonable. It fixes fees…
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A Simple “Yes” or “No” Will Do, Thank You
As soon as I glanced at United States v. Rodriguez, case no. 07-10217 (9th Cir. Mar. 10, 2008) today and realized I would have to defer drafting a blog post until later, I had a pretty good idea I was going to be preempted, and I was pretty sure by whom. Sure enough, California Appellate Report and Decision of the Day both have excellent posts on the case, so I’ll just briefly explain the case and then use my fellow bloggers’ posts as starting points for my discussion. The issue is this: if a person in custody gives an ambiguous response when asked if he waives his Miranda rights, is…
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E-Filing Briefs in the Supreme Court
Rule 8.212, California Rules of Court was amended effective January 1, 2008 to allow parties to serve the Supreme Court electronically in lieu of physical service of four hard copies of briefs filed in the court of appeal, but the Supreme Court website did not appear to provide the promised information for doing so. That’s changed. You can now go here to start the electronic filing process for your brief. I haven’t tried it out with an actual brief yet, but it looks pretty straightforward. I’ll be able to try it out in a week or two and will report on it then. Hat Tip: Jeffrey Lewis at Nota Bene.
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You’ve Heard of Doubting Thomas. Here’s Silent Thomas.
This AP article explores the curious silence of Supreme Court Justice Clarence Thomas. According to the article, Justice Thomas has not asked a question at oral argument in two years. I knew he was a man of few words that rarely asked questions . . . but two years? That’s stunning. He says he asks questions when he needs to. Which reminds me of the kid who wouldn’t talk. At age 2, his parents took him to the doctor, who could find nothing physically wrong with him. But at age 4, he still hadn’t said a word. To the doctor again. Again, nothing physically wrong. And so it went for…
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Another Private AG Fees Case Headed for the Supremes?
Well, we just had one Supreme Court opinion on the private attorney general statute (about which I posted here), and at first, I suspected that the Third District Court of Appeal was trying to tee up another one for potential Supreme Court review in Marine Forests Society v. California Coastal Commission, case no. C052872 (3d Dist. Mar. 4, 2008). To my mind, its public policy implications are significant. At issue is the scope of the “catalyst” theory for recovering attorney fees under California’s “private attorney general” statute, Code of Civil Procedure section 1021.5. The catalyst rule provides that a party can recover fees under the statute even if it is…
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Surprised by Jurisdiction
It’s hard not to be a pessimist when filing a petition for writ of mandate. Getting past a summary denial is always tough. But it’s pretty easy In re Copley Press, case no. 07-72143 (9th Cir. Mar. 4, 2008), where the Ninth holds that it has appellate jurisdiction to review the order. Thus, the court converts the writ proceedings into an appeal, then decides it on the merits. The order at issue is an order unsealing documents related to a plea agreement. The order rather obviously meets both criteria for review under the collateral order doctrine because it “conclusively decides an issue” and “it is effectively unreviewable on appeal from…
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Something Fishy about the “Smell Test” and the Standard of Review
A couple of interesting dissents filed today in a denial of rehearing en banc in United States v. Jenkins, case no. 06-50049 (9th Cir. Mar. 4, 2008). I blogged about the panel decision in this post because the decision resolved an open issue on the standard of review to apply when reviewing an order dismissing an indictment for prosecutorial vindictiveness. My post referred readers to California Appellate Report for Professor Martin’s write-up of the merits. Judge O’Scannlain, joined by five other judges, dissents from the order denying rehearing en banc, and Chief Judge Kozinski writes a second — and very brief — dissent to highlight Judge O’Scannlain’s criticism of the…
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Grammar Girl’s Top 10 Grammar Myths
Today is National Grammar Day, and Grammar Girl is commemorating it with a podcast of the “Top Ten Grammar Myths.” You can download it as an .mp3 file or go to her transcript instead (the latter includes links to her detailed discussions of the myths). I don’t think anyone is going to be surprised by her top grammar myth.
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Would this have Worked for the California Supremes?
The WSJ.com Law Blog posts today about possible remedies for the problem of recusal of Supreme Court Justices due to stock ownership in one of the parties, noting that Chief Justice Robert’s recent recusal from a case resulted in a “problematic even-numbered panel” that rendered a 4-4 decision in Warner-Lambert Co., LLC v. Kent, case no. 06-1498 (Mar. 3, 2008). The Law Blog links to this post at The Volokh Conspiracy, where Professor Volokh floats the idea of requiring justices to sell stock in a party upon the granting of certiorari. The availability of designated justices may make this seem like a moot consideration for our own Supreme Court, but…