In a post from the weekend cleverly titled to include “Ninth Makes Up its Mind on Inability to Make Up its Mind,” Ninth Circuit Blog performs a great public service by providing resources to help understand the scope of “fractured” en banc cases decided by plurality opinion. Definitely worth a read, especially if you are relying on such authority and want to “nail down” its strength and limitations. Ninth Circuit Blog’s post concludes that there’s advantage to be had from ambiguity: Come to think of it, if the federal judiciary is increasingly hostile to the rights of criminal (and particularly, indigent) defendants, maybe plurality decisions are good things. After all,…
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Notice to One of Multiple Attorneys Suffices to Trigger Deadline to Appeal
It’s not that uncommon to see a party represented in a lawsuit by more than one law office. That party often requests service of documents be made on all of its attorneys. Notwithstanding such a request, the court of appeal holds in Adaimy v. Ruhl, case no. B193745 (2d Dist. Feb. 28, 2008) that the mailing of notice of entry of judgment to just one of multiple firms representing a party triggers the deadline for that party to file its notice of appeal. Adaimy claimed the notice of entry of the order denying his new trial motion was ineffective, thus giving him 180 days from the date of entry of…
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What the Heck IS “Abuse of Discretion,” Anyway?
The “abuse of discretion” standard can be a tricky thing. I’ve heard lawyers ridicule it as a formula for automatic affirmance of the trial court. That is, of course, off the mark. But the breadth of discretion has to be defined for effective appellate review, and even appellate courts sometimes struggle with this standard or mistake it for something it isn’t. (I wrote about the difficulty the Ninth Circuit had in one case last year here, witha related post here and an announcement of my article on the topic here.) I got to thinking about the complexity of the abuse of discretion standard again when I read a post last…
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Expert Witness Fees May Not Be Awarded Under Private Attorney General Statute
In a decision being closely watched by many, the California Supreme Court holds today in Olson v. Automobile Club of Southern California, case no. S143999 (Feb. 28, 2008), that Code of Civil Procedure section 1021.5, the state’s “private attorney general” statute, does not authorize a court to award expert witness fees in addition to the attorney fees explicitly authorized by the statute. As the court notes, the statute explicitly authorizes an award of “attorney fees” and is silent about expert witness fees. Which should have made for an easy decision. Yet the court is compelled to delve behind the plain language of the statute. The decision is a good primer…
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PrawfsBlawg Looking for “Screwed” Nominations
PrawfsBlawg is seeking nominations for “most screwed victims in case law history.” The post has already collected quite a few nominations in the comments. Surely, the readership of this blog has something to contribute. For lawyers who represent a lot of appellants, virtually everyone who walks into their office feels like they have been “screwed” — and many of them have.
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Be Careful with those Plea Agreements
Be very, very careful with the language of your plea agreement. After all, it’s a contract, and deserves the same careful consideration before entering into it. You might live to regret it, even if it takes 20 years for it to catch up with you, as happened to the defendant in People v. Paredes, case no. D050150 (4th Dist. Feb. 26, 2008). Paredes, a legally resident alien, pleaded guilty to voluntary manslaughter in 1987 in part because the prosecutor agreed to a “JRAD” — a judicial recommendation against deportation — that, under 1987 federal law, precluded the government from removing him from the country on the basis of the conviction.…
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Correction re: Live Coverage of Marriage Cases Oral Argument
Thank you to alert commenter Stephen Ehat for pointing out an error in my post announcing television coverage of the marriage cases oral arguments before the California Supreme Court on March 4. I originally posted that the arguments would be taped for later broadcast, but they will actually be broadcast live. For details, see the announcement at the California Courts website.
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Self-Represented Attorney May Not Recover Fees on Anti-SLAPP Motion
In Taheri Law Group v. Neil C. Evans, case no. B192828 (2d Dist. Feb. 26, 2008), the Court of Appeal holds that the attorney fee provision in the anti-SLAPP statute (Code Civ. Proc., § 425.16) does not entitle a self-represented attorney to recover fees for bringing a successful anti-SLAPP motion. This is merely an extension of the similar holding in Trope v. Katz (1995) 11 Cal.4th 274, which held that a self-represented attorney could not recover fees under a contractual fee provision. The Taheri court makes clear that an attorney-client relationship is necessary before fees may be recovered. The identical issue of anti-SLAPP attorney fees was treated in much greater…
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Ninth Heads for Vegas
A 3-judge panel of the Ninth Circuit, including Chief Judge Kozinski, will hear three cases at the William S. Boyd School of Law on the campus of University of Nevada, Las Vegas on February 27. Details here. As everyone knows, a published opinion resulting from any of those cases will become precedent in nine western states and two Pacific Island jurisdictions. Which means that for the panel to uphold the “What happens in Vegas, stays in Vegas” motto, they’ll have to resist certifying the opinions for publication.
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One Blog I Never Want to Appear On
Ever run across some horrible writing in an opponent’s brief and wish you could broadcast it to the world? Now you can. Legal Literatus, the blogger at the relatively new blog, Lawyers[‘] Writing Wrongs, gives you that outlet. LL solicits your contributions and provides his e-mail address in the sidebar of his blog. Hat Tip: Mister Thorne of Set in Style.
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Eight Means Eight
When it comes to applying an eight-factor test, that is, as noted by the Ninth Circuit in Jada Toys v. Mattel, case no. 05-55627 (Filed Aug. 2, 2007, amended Feb. 21, 2008). Its a trademark case. In granting summary judgment to Jada on Mattel’s trademark infringement claim, the district court found as a matter of law that there was no likelihood of confusion between the marks (HOT RIGZ and HOT WHEELS), citing the dissimilarity of the marks as the only basis for the finding. The Ninth reverses because the district court failed to evaluate the facts under the venerable 8-factor Sleekcraft test for likelihood of confusion. Using the dissimilarity of…
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Parolee May Get Private Counseling without Waiving Privilege
Where parole is conditioned on the parolee receiving psycotherapy (in this case, because of the sexual nature of the offense), and the parolee retains a private therapist in addition to using state-provided therapy, is the parolee required to waive the psychotherapist-patient privilege regarding the private therapist in order to remain on parole? The state in In re Corona, case no. B197023 (2d Dist. Feb. 20, 2008) insisted that the parolee must waive the privilege. The Court of Appeal says otherwise. The court found that Corona should be commended, rather than threatened, for seeking additional therapy, at least absent the state’s ability to identify a “nefarious reason” that he did so.…
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A Legal Classic Spoofed, and Well
I doubt you can find a lawyer unfamiliar with the scene in the movie “A Few Good Men” in which the defense lawyer, played by Tom Cruise, grills the witness, a Marine colonel played by Jack Nicholson, over the disciplinary practices at the Marine Barracks at Guantanamo Bay. (You know the one: “You can’t handle the truth!”) There’s a terrific spoof of that scene over at PrawfsBlawg. Substitute a congressman for the Tom Cruise character, 7-time Cy Young award winner Roger Clemens for the witness, and the subject of steroids and human growth hormone for discipline at the Marine Barracks, and you have a wonderfully entertaining spoof. (Just a script,…
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A Happy Milestone
Somehow I managed not to notice for a few days, but early last week my RSS feed subscriptions finally cracked triple digits after hovering around 95 for several months. In fact, subscriptions spiked to 113 earlier this week but have settled down to 101 today. (Every couple of days, Feedburner drops my Netvibes subscribers and the subscriber figure drops to the mid 30s, but then goes back to the correct figure after a day or two.) 100 regular readers probably doesn’t seem like a lot, especially to those of you who are fellow bloggers. But it’s a happy milestone nonetheless. I have a way to go to catch up to…
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O.J.’s Jurisdictional Challenge Goes Nowhere
Does a court need to have personal jurisdiction over a judgment debtor at the time it renews a judgment in order for that renewal to be valid? In Goldman v. Simpson, case no. B200082 (2d Dist. Feb. 20, 2008), O.J. Simpson moved to vacate the renewal of the judgment against him on the ground it was void for lack of personal jurisdiction because he resided in Florida at the time the court renewed the judgment. He appealed from the denial of the motion to vacate. The Court of Appeal affirms. Code of Civil Procedure section 683.170, subdivision (a) provides in part that “[t]he renewal of a judgment pursuant to this…
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Legal Research for Non-Lawyers
Last week, a commenter at Lifehacker described LawHelp, which looks extraordinarily useful for non-lawyers: LawHelp.org will link you to your state’s legal information web site. Supported by legal aid organizations, pro bono programs and courts, these web sites generally cover information that is applicable to low- and middle-income people in areas such as divorce, orders of protection, landlord-tenant law, and debt collection. The information is generally written in plain language. The site describes itself as “your gateway to America’s nonprofit legal services providers.” The home page links to self-help sites in all 50 states. Clicking the California link, for instance, takes you here. When I must turn away prospective clients,…
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Bluebook Online
Is your office a little messy? You don’t want to risk being unable to find your copy of “The Bluebook” (The Bluebook: A Uniform System of Citation) just as you’re finalizing citations for that brief that has to go out the door. You’re a lot less likely to misplace your computer, so perhaps an on-line Bluebook is more reliably available to you. The Harvard Law Review is happy to oblige. It just announced an on-line version of this essential publication, available via subscription at what appear to be reasonable prices, including multi-year discounts. H/T to Legal Writing Prof Blog. Who got it from Tax Prof Blog. Click on either link…
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Treated Like Cattle
The recent, highly publicized recall of more than 143 million pounds of beef may make Animal Legal Defense Fund v. Mendes, case no. F052009 (5th Dist. Feb. 15, 2008) more relevant to some people than it otherwise would have been. It’s a suit brought by the Fund against a calf rancher, alleging violation of Penal Code section 597t for confining animals without an “adequate exercise area.” Plaintiffs also include consumers who allege violation of the unfair competition statutes. The consumers “reasonably presumed” that dairy products they purchased were produced from animals kept in compliance with the law and alleged that they lost money by purchasing dairy products that were illegally…
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More Free Legal Research
Crediting Lifehacker for the tip, Jeffrey Lewis at Nota Bene links to The Public Library of Law, which describes itself on its home page: What is the Public Library of Law? Searching the Web is easy. Why should searching the law be any different? That’s why Fastcase has created the Public Library of Law — to make it easy to find the law online. PLoL is the largest free law library in the world, because we assemble law available for free scattered across many different sites — all in one place. PLoL is the best starting place to find law on the Web. What is available on PLoL? Cases from…
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Collateral Estoppel and the Exhaustion Doctrine
Must a whistleblower whose claim is denied at the administrative level exhaust his judicial remedies by petitioning for mandamus in the Superior Court before he may file a civil suit under the Whistleblower Act? That was the apparent question in CALPERS v. Superior Court, case no. C054168 (3d Dist. Feb. 15, 2008), where CALPERS contended that its demurrer to the civil suit should have been upheld because the plaintiff, whose whistleblower administrative claim had been denied by the State Personnel Board, did not challenge the SPB executive officer’s findings by petitioning for mandamus. The answer is, “it depends.” That’s because the issue isn’t so much whether the statute requires exhaustion…
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E-Filing in C.D. Cal Made Easy?
As southern California federal practitioners know, e-filing became mandatory this year for nearly all civil cases in the Central District of California. Now comes a handy bit of information via Kimberly Kralowec at The UCL Practitioner, where she posts: “Attorney Martin W. Anderson has made our lives easier by creating ‘The Unofficial E-Filing Manual for the United States District Court, Central District of California,” available for free download at his site.'” For links to the guide and to the Daily Journal article from which Kimberly learned about it, see her post.
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Front Loading Your Legal Writing
Wayne Schiess’s legal-writing blog begins a post about summarizing your points with a very absolutist sentence: “Every legal document should begin with a summary of some kind.” Hear, hear! He gives you pointers for doing so, with before-and-after examples illustrating how to present important information early, leave tedious details for later, and avoid abstraction. And since the title of the post includes “part 1,” you’ll want to follow his blog for the follow-up posts.
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Best Law Firm Name of All Time
I was reminded of the best law firm name ever when I saw the firm as counsel of record in a Ninth Circuit decision Wednesday. I am familiar with them from my days in Orange County (in fact, I interviewed with them around the time I interviewed with and became an associate at the late, great, Brobeck, Phleger & Harrison). The best real law firm name I’ve ever run across: Payne & Fears, LLP. As good as, or better than, the fake firm names in your law school exams (like Dewey, Screwem & Howe or Low, Ball & Lynch). UPDATE (2/15/08): Several commenters point out that Low, Ball & Lynch…
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To Adopt, or Not to Adopt
Professor Martin poses a tongue-in-cheek question regarding the Ninth Circuit’s work ethic.
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Posting Lull
I will be out of the office all day tomorrow and am swamped trying to get some work done in advance of the trip. I’ve set up a couple of very brief, fun, “Friday”- style posts for tomorrow, but I doubt I’ll have time to review any of today’s cases and thus I may not be able to post anything more substantive until this weekend or Monday.
- Appellate Procedure, Attorney Fees, California Procedure, Post-Trial Practice, Standard of Review, Statutory Construction
Review of “Private Attorney General” Fee Awards
Kimberly Kralowec at The Appellate Practitioner points out a case from earlier this month, Roybal v. Governing Board of the Salinas City Elementary School District, case no. H030596 (Jan. 11, 2008, ordered published Feb. 6, 2008), in which the Court of Appeal neatly summarizes the proper standards of review to apply when reviewing attorney fee awards made pursuant to California’s “private attorney general” statute, Code of Civil Procedure section 1021.5. The case recognizes the Supreme Court’s 2006 departure from the one-size-fits-all “abuse of discretion” standard in recognition that some awards may be due more deferential review in light of their fact-intensive nature, while those revolving around legal issues like statutory…
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Realism in Appellate Training
If we want students to learn to address an appellate court, shouldn’t the seating at moot court competitions at least resemble an appellate courtroom? All too often, it doesn’t, says Professor Colleen Barger at Legal Writing Prof Blog. Physical limitations of the venues hinder it, she notes, and she’s asking for suggestion she can offer moot court tournament organizers. If you have any, head over to the link.
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Try Tackling All of This Case Law
“S. COTUS” at Appellate Law & Practice suggests heading over to this link at Public.Resouce.org, where, according to Robert Ambrogi, more than 1.8 million pages of case law have been released in what AL & P calls “somewhat raw form” (raw enough to title his post “XML case law”), apparently as an invitation to developers to catalog them in more usable form. He adds there are some “fun” videos there as well, and includes a link to a re-enactment of Marbury v. Madison.
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Televised Coverage and More Regarding Supreme Court Marriage Cases
According to this link at the California Courts website, oral argument in six cases concerning the constitutionality of California’s marriage statutes will be televised on the California Channel shortly after they are heard on on March 4. The court has also made many of the briefs available online, which you can access from the same link. UPDATE (2/27/08): An alert commenter points out that the television broadcast will be live instead of delayed.
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How Do You Use Legal Blogs?
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. How would you like your name up in lights? Or at least mentioned in a presentation? I can’t promise either, but you have a shot at the latter if you respond to my call for assistance at the end of this post. I am preparing a presentation for a section of the local bar on the use of…