It’s always frustrating when you have to litigate over issues stemming from a court’s failure to do something that it should have done or even was required to do. Just ask the Oakland Raiders, who saw their new trial order reversed because the trial judge’s order did not satisfy the Code of Civil Procedure. The issue also arises in California courts where the trial court fails to rule on objections to evidence in the context of a summary judgment motion. The consequences of such failure have been discussed on a number of blogs recently, and The Appellate Practitioner has an excellent post regarding the Supreme Court’s recent grant of review…
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Lawyer Advertising Pit Bulls, uh, Make That Pitfalls
Not that you’d ever know it from reading this blog, but I’m a pretty funny guy. So I like things about humor and the law. A front page article in last Thursday’s Wall Street Journal documents how badly some state bars lack a sense of humor (subscription required — if that link doesn’t work, go to this post at the WSJ.com Law Blog, which appears to allow non-subscribers to link to the article). Take the opening few paragraphs: Syracuse, N.Y., attorney James Alexander ran a TV spot for his firm showing lawyers offering counsel to space aliens who had crashed their UFO. He also did one with lawyers towering like…
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Superheroes or Superegos?
Which best describes bloggers? That depends on whether you listen to Chief Judge Kozinski, whose opinion is noted at The Volokh Conspiracy, or to a tongue-in-cheek appraisal in The New York Review of Books, as excerpted at The UCL Practitioner. Can you match the opinions to the commentators before you look?
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Pro Bono Attorney Fees in the News Again
National Law Journal has a new article called Pro Bono Case Triggers a Fee Fight on the controversy surrounding the attempt of a Seattle BigLaw firm (Davis Wright Tremaine) seeking to recover its attorney fees under a fee-shifting statute even though it took the case pro bono. The case was the closely watched “Seattle Schools” case decided by SCOTUS last year. (If you want some background from the view of the losing party, the school district’s press release from the day of the decision is available as a PDF download.) In a very detailed post entitled The Pro Bono Road to Riches! last October, I discussed the issue in the…
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Weekend Downtime on the Blog
I’ll be upgrading the blog to WordPress version 2.3.3 this weekend. I’ve upgraded several times before, and it usually only requires about a half hour of downtime. But you never know what problems will crop up. So if you try coming here and get a “this site is down for maintenance” message, give it an hour or so, then check back.
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That Must Be One Heckuva Jeep!
You’re busted in L.A. for soliciting prostitution. Worse, you happened to be inside your 2000 Jeep Cherokee when you were busted, so it gets impounded and the city initiates forfeiture proceedings. You oppose the proceedings, spending $49,735.90 on attorney fees. For your 5-year-old Jeep. Wow. You win in the trial court, but go on an appellate court odyssey before everything is finally determined in your favor. The only downside is that your name and your arrest for solicitation of prostitution are now enshrined in a published opinion. But at least your name isn’t in the title: City of Los Angeles v. 2000 Jeep Cherokee, case no. B185673 (2d Dist. Feb.…
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Firestarter Burned by Government Immunity
I’ve been stewing over this post for a couple of days. Sovereign immunity always left a sour taste in my mouth. Yes, I understand all the justifications for it. But it still seems like a raw deal a lot of the time. In California, government immunity (against state law claims) is the rule, and the liability of a public entity is limited to specific statutory exceptions. So . . . you can’t generally sue the government unless one of those exceptions applies (and even then, not until jumping through the necessary administrative hoops). I get that. But what if the government sues you? Surely, those immunity statutes don’t prevent you…
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Comments on Proposed Revisions to Civil Jury Instructions are Due March 7
The Judicial Council of California has posted proposed revisions to civil jury instructions for comment. Comments are due by 5 p.m. on March 7, 2008. I haven’t looked through the proposal, but it’s hefty — more than 200 pages. If anyone sees anything of particular interest in the proposal, shoot me an e-mail.
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LawLink Access to The California Blog of Appeal and More
There’s a new way to access legal blogs and more about your colleagues. And I do mean new. I added The California Blog of Appeal to the blog directory at LawLink over the weekend. This is only the eighth blog to be added, but plenty more are sure to follow. Clicking on any of the blogs in the directory gives you an RSS feed right inside your browser window that shows teasers from the last few (up to 15) blog posts at that blog. Who knows how widely seen it may become? If you have your own law blog, you might as well get it up there now. LawLink appears…
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Preserving Evidentiary Objections for Appeal from a Summary Judgment
Last Friday, the California Supreme Court granted review in Reid v. Google, Inc., case no. S158965. The Supreme Court states the following as one of the issues for review: “Are evidentiary objections not expressly ruled on at the time of decision on a summary judgment motion preserved for appeal?” Until now, the answer has generally been “no.” That’s a rule that has always rankled me because securing a ruling can be out of the objecting party’s hands. No matter how much prodding one does, the court may fail to rule. Tom Caso at the Opening Brief pointed out this likelihood last October, when he covered a series of decisions creating a conflict…
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Ninth Circuit Fires Up Electronic Case Management Efforts
The Ninth Circuit announced last Friday that it “will begin implementation of the appellate version of a new case management system, CM/ECF (case management/electronic case files) on March 3, 2008.” See this link for details about timing, training, and sign-up for e-mail notification of docket activity. Thanks to Criminal Appeal for the link.
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Legal Writing Podcasts from Suffolk
Suffolk University Law School has launched a series of podcasts, including a weekly podcast on legal writing, through Apple’s iTunes U. Wednesday’s press release from the school is here. Go here for Suffolk’s iTunes U portal, which tells you everything you need to know and provides links that will automatically open iTunes to Suffolk’s podcasts. Thanks to Legal Writing Prof Blog.
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Maybe It’s Not OK to Strip Search a 13-year-old Girl for Ibuprofen After All
Last September, I covered (along with seemingly every other legal blogger) Redding v. Safford USD #1, case no. 05-15759 (9th Cir. Sept. 21, 2007), in which the Ninth Circuit held that a school’s strip-search of a 13-year-old girl for Ibuprofen, for crying out loud, was constitutionally permissible. Today, the Ninth orders rehearing en banc. For a round-up of coverage of the original opinion, see my original post.
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A New Writing Blog
The new writing blog Write to Done isn’t tailored to legal writing, but I find it interesting and helpful and have added it to my blogroll. It is as much (or more) about the process of writing as it is about the end product, and even has a category dedicated to blog writing. Whether you are considering a blog or are already blogging, or perhaps aspire to be another Scott Turow or Vincent Bugliosi, you may find it helpful.
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The Google of Legal Research?
Crime & Federalism recently posted about a new research service called “PreCYdent,” the function of which he briefly describes: It appears to “rank” cases much in the way Google ranks web sites. For example, typing in “qualified immunity” in PreCYdent doesn’t just give you a random list of cases. It gives you the leading cases. Saucier v. Katz, for example, is the leading modern day case on qualified immunity. It’s also the first result. Not all searches run that well, as the writer points out in what amounts to a mini-review, but the service shows promise. You can read more about the service at Right Coast in a post authored…
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Appellate Powerhouse Launches Punitive Damages Blog
New to the blogroll is the California Punitive Damages blog, launched recently by appellate powerhouse Horvitz & Levy. I’m told by Curt Cutting, one of the regular contributors at the new blog (and, I’m pleased to say, a regular reader of The California Blog of Appeal), that besides covering appellate decisions on the topic, the blog will cover “proposed legislation, academic commentary, significant decisions from other jurisdictions, and anything else that relates to California punitive damages litigation.” Congratulations to you and your fellow contributors on your launch, Curt!
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Successive Topic Sentences for Successive Cases
In a four-post series titled “Topic and transition sentences in case explanations,” (part 1 here, with the remaining three immediately following), Wayne Schiess’s legal-writing blog gives a great exposition of how to transform rote sequential introduction of cases into a flowing narrative that uses each case to further develop your argument.
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Grisham Pens “The Appeal”
Perhaps I’m in the minority, but I can’t stomach most of the John Grisham I’ve read. Maybe it’s because The Firm was the first book of his that I read, and I found it (and the movie) excellent, that the others I tried seemed so bad. I thought A Time to Kill was horribly written, The Pelican Brief was inane, and I lost interest in The Client around ten or twenty pages in. After that, I gave up on Grisham, so I’ll concede there’s a possibility I’ve missed some good novels since then. But the title of his latest novel caught my eye. The premise of The Appeal, based on…
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Comedy Club Finds Out there’s Nothing Funny about Appellate Jurisdiction
Even when an appeal arises from a trademark dispute between two parties in the comedy trade, appellate jurisdiction is serious business, as the appellant learns in Comedy Club, Inc. v. Improv West Associates, case no. 05-55739 (9th Cir. Sep. 7, 2007, amended Jan. 23, 2008). In this trademark license dispute in which the district court dismissed all claims in its order compelling arbitration, the appellant had 180 days to file its notice of appeal because the district court did not enter judgment on this appealable order. (Fed. R. App. P. 4(a)(7)(A)(ii).) But the appellant waited 287 days, until the arbitration was concluded and the arbitration award was confirmed, to do…
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Does It Make a Difference to Have Your Client Present at Oral Argument?
Every glimpse into the collective minds of appellate justices usually helps, especially with regard to oral argument, but Donna Bader provides an interesting insight at Appeal to Reason that I’m not sure what to do with. Her observation: Once I questioned some justices about whether they look around the courtroom during oral argument to figure out who the parties [are]. If the attorney sits next to the clients, the answer is obvious. Sometimes, clients sit in the back, leaving the attorney alone to prepare for oral argument. Surprisingly, the justices admitted they had a certain curiosity as to who the participants were. More than that, there was also a curiosity…
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DRI Appellate Advocacy Seminar: February 28-29, 2008
The 2008 DRI Appellate Advocacy Seminar is scheduled for February 28-29 in Orlando, Florida. I was tipped off to the event by New Orleans appellate attorney Ray Ward of the (new) legal writer, who gives this annual seminar a glowing recommendation at his blog: I have been fortunate enough to attend every DRI Appellate Advocacy Seminar ever held, from the first one in 1999 in Washington, D.C. through last year’s in Phoenix, Arizona. The DRI seminars are, in my opinion, the best of their kind in the nation. You can learn more about the presentations scheduled for the seminar from Ray Ward’s post, the DRI website, and this PDF brochure.
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Scope of Decision by Reviewing Court Can Limit Preclusive Effect of Trial Court Ruling
In Zevnik v. Superior Court, case no. B201105 (2d Dist. Jan 18, 2008), the Court of Appeal continues a string of recent cases holding (contrary to older cases) that where a trial court relies on alternative grounds, each sufficient to uphold its decision, and appellate review follows, only the ground relied on by the appellate court has collateral estoppel (issue preclusion) effect. In Zevnik, the petitioners were lawyers sued for malpractice and breach of fiduciary duty arising out of a conflict of interest in representing multiple clients in prior litigation. Petitioners sought preclusive effect for the trial court’s findings on a disqualification motion in the prior litigation, in which the…
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You Can Still Be Fired for Marijuana Use — Even if It’s Medical Marijuana
As expected, Alex Coolman at Drug Law Blog is all over today’s Supreme Court decision in Ross v. Raginwire Telecommunications, Inc., case no. S138130 (Jan. 24, 2008), in which the divided Supremes hold that the Compassionate Use Act, which decriminalized medical use of marijuana, does not preclude an employer from terminating an employee for such use. Coolman’s analysis is a quick fix plus it is very detailed and includes YouTube video of portions of the oral argument and commentary on the tension created with City of Garden Grove v. Superior Court, which I blogged about here. Justice Kennard’s concurring and dissenting opinion in Ross notes Ragingwire’s argument that even Ross’s…
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Jury Foreman’s Blog a Likely Issue on Appeal
A local trial court has just denied a new trial motion based on juror misconduct, where the misconduct was the jury foreman’s blogging about the gang member’s 19-day murder trial while it was going on, including posting a photo of the murder weapon, commenting on the evidence and witnesses, praising his own performance as jury foreman, and criticizing the work ethic of courtroom staff. From today’s Ventura County Star: After sentencing a gang member to prison for murder, a Ventura County judge ripped into the jury foreman Tuesday, holding the juror in contempt of court for writing a blog that exposed details of the case during the trial. The blog,…
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The State of Legal Research Presented in Three Minutes and Thirty-One Seconds
Via Legal Writing Prof Blog comes this short, silent, and mildly amusing film on legal research made by some students at Stanford Law School. Where did these students find the time?
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Inmate Earns SCOTUS Review with Pro Per Cert Petition
Legal Writing Prof Blog reports on federal inmate Keith Burgess’s recent successful pro per cert petition. The post includes links to press coverage and to the petition itself. It’s nice to see clear, compelling writing triumph, regardless of who presents it, especially in light of recent charges that the court tends to favor “superstar” attorneys with an established SCOTUS presence.
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How to Get Started on Improving Your Writing
If you’re looking to improve your writing — and that ‘s something we should never stop doing — check out the three resources suggested by the Ross-Blakley Law Library Blog as excellent starting points.
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Why is New York’s Highest Court not “Supreme”?
It’s a question well outside this blog’s usual jurisdiction, but my guess is that this question crossed the minds of almost all of us during law school, when we learned that New York’s court of last resort is called the “Court of Appeals,” while the trial courts are “Supreme Courts.” Professor Orin Kerr got curious enough to do some Googling on the issue, and posts what he learned — which includes events dating back to 1777 — at The Volokh Conspiracy. So if you’d like to end your week (or start your weekend) with some legal trivia, head over there.
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I Hate Motions for Reconsideration
Another good post from Professor Martin yesterday, this time concerning In Re Marriage of Barthold (1st Dist. Jan. 15, 2008). The court summarizes its holding in the initial paragraphs: The California Supreme Court held, in Le Francois v. Goel (2005) 35 Cal.4th 1094 (Le Francois), that even when Code of Civil Procedure section 1008 (section 1008) precludes a party from moving for reconsideration, a trial court has inherent authority to correct an erroneous ruling on its own motion. In this marital dissolution case, the trial judge denied a post-judgment motion filed by the wife. She promptly filed a motion for reconsideration. The trial judge determined that the motion did not…
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Reviewing State Administrative Agency Decisions
If you wanted to find out the scope of review and the standards of review employed in administrative mandate proceedings generally, you could do a lot worse than look at the discussion at pages 13-14 of Schutte & Koerting, Inc. v. Regional Water Quality Control Board, case no. D048830 (4th Dist. Jan. 16, 2008), which sums it up very nicely.