Footnotes. Some people love ’em, and some people hate ’em. And if you don’t know which way the judges deciding your appeal lean on the issue, and you can’t resist using footnotes, you’ll want to at least use them “correctly” — if there is such a thing. In this post at the (new) legal writer, New Orleans appellate attorney Raymond Ward notes an article by The John Marshall Law School’s Prof. William B.T. Mock, Jr. entitled When a Rose Isn’t ‘Arose’ Isn’t Arroz: A Student Guide to Footnoting for Informational Clarity and Scholarly Discourse, which, according to Ward, divides footnotes into three types and describes the appropriate use of each…
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Failure to Exhaust Administrative Remedies is a Waivable Defense
At first glance, it might appear that the Court of Appeal in Mokler v. County of Orange, case no. G036029 (4th Dist. Nov. 26, 2007) did the unthinkable: hold that a defendant had waived a jurisdictional defect. Not so fast. The fact of the matter is that not all jurisdictional defects are created equally. Mokler provides a fairly good discussion of the difference between acts in the absence of fundamental jurisdiction — that is, acting in the absence of power to preside over the case — and acts in excess of jurisdiction, in which a court that has fundamental jurisdiction violates a restriction on the manner in which it can…
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Writing Advice from Scalia and Garner is Coming
Via Carolyn Elefant at Law.com (whose blog post title, by the way, is quite clever) comes news that Justice Antonin Scalia has teamed up with legal writing guru Bryan Garner to author a book on legal writing. Ms. Elefant links to an article at Legal Times giving more details, and then asks some excellent (and amusing) questions: Given that Scalia’s opinions (or in particular, his dissents), are often known for their nastiness or sarcasm, I’m particularly curious about the advice that he’ll provide to lawyers. Will Scalia counsel restraint and professionalism in legal writing, and if so, how will he reconcile that with his own opinions? Will Scalia offer “real…
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Is a Sentence within the Range Stipulated in a Plea Agreement Appealable?
UPDATE (4/23/08): The holding described in this post was changed by the court’s amended opinion of April 17, 2008). See my coverage. The Ninth Circuit rejects such a challenge in U.S. v. Garcia, case no. 05-30356 (9th Cir. Nov. 19, 2007), at least where the plea agreement was not contingent on the sentencing guidelines and the only error asserted was a miscalculation of the guidelines or failure to properly consider the factors in Title 18 United States Code section 3553. 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…
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Appeal from Non-Appealable Order Does not Deprive District Court of Jurisdiction
Nasciemento v. Dummer, case no. 06-35062 (9th Cir. Nov. 21, 2007) presents a host of jurisdictional issues in a concise opinion. I recommend you read the entire opinion and will concentrate on just one of the issues here, since most of the principles in the opinion are well-established. Nasciemento purported to appeal from a non-appealable order of the Nevada district court that dismissed some, but not all, defendants and transfered the case to the Montana district court (the “transfer order”). After his appeal was dismissed, but nine days before the mandate issued, the Montana district court entered a discovery scheduling order. When the Montana court refused to extend time for…
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New Book on Federal Standards of Review
West has published a new book on federal standards of appellate review: H. Edwards and L. Elliot, Edwards and Elliott’s Federal Courts – Standards of Review: Appellate Court Review of District Court Decisions and Agency Actions (West 2007). Here’s the description from the book’s page at the West website: This sophisticated but easy to understand exposition of the standards of review offers an invaluable resource for law students, law clerks, and practitioners. Decisions of the U.S. Courts of Appeals invariably are shaped by the applicable standards of review. “Fill[ing] a huge gap in the literature,” Standards of Review masterfully explains the standards controlling appellate review of district court decisions and…
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Tip for Westlaw Users
Ross-Blakley Law Library Blog posts a nice tip about a new key number search capability implemented by Westlaw.
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150 Resources for Legal Writing
the (new) legal writer links to the Online Education Database’s “collection of 150 resources to help you write better, faster, and more persuasively.” Terrific. To help me get through all of those, one of them has to help me read better and faster. But seriously, there’s nothing like regular blogging to hone your speed-writing skills!
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Are Stipulated Judgments Appealable?
Well . . . yes and no. Or better yet, mostly no, and occasionally yes. And to discover the difference between those that are and those that aren’t, an excellent starting point is yesterday’s decision in Harrington-Wisely v. State of California, case no. B190431 (2d Dist. Nov. 20, 2007). Plaintiffs in this case alleged 10 causes of action for damages and one for injunctive relief, alleging that their constitutional rights were violated by overly intrusive x-ray technology (more about that later) used by the California Department of Corrections to search visitors at certain state penitentiaries. The CDC successfully moved for summary adjudication on the class damages claims on the ground…
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Welcome to all Los Angeles Daily Journal Readers — and a Happy Thanksgiving to All
Welcome to all those visiting this blog for the first time after reading my article in the November 21 Los Angeles Daily Journal! Click and scroll around, check out some of the links in the blogroll, and come back again. Better yet, subscribe to this blog’s RSS feed. My regular readers of more than a few months’ duration have seen my posts about the subject of that article — last August’s en banc decision in U.S. v. Larson, in which the Ninth Circuit resolved a 3-way intra-circuit split on the standard of review for Confrontation Clause challenges based on limits placed on cross-examination — here and here. The article in…
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Death Penalty Appeals to Shift from Supreme Court to Court of Appeal?
Monday’s announcement that the Supreme Court is seeking a constitutional amendment to have death penalty appeals heard in the Courts of Appeal (press release here) has predictably triggered blog coverage. Legal Pad calls the announcement a “bombshell,” poses several questions regarding the potential impact of such an amendment, and seeks answers from their readers. Crime & Consequences questions whether the proposed summary affirmance procedure for the Supreme Court to affirm Court of Appeal dispositions is functionally any different from discretionary review. The first comment on the post questions the propriety of justices “publicly lobbying to modify their jurisdiction” because practitioners who appear before them will be hesitant to publicly oppose…
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New Amicus Briefs in Roommates.com Case
Professor Eric Goldman continues to stay on top of the Roommates.com case with a new post at his Technology & Marketing Law Blog linking to some amicus briefs filed in connection with the en banc rehearing. If you’re not familiar with this case about whether the immunity provision of the Communications Decency Act protects an online roommate locating service from liability for discriminatory roommate advertisements — as well as the issue of whether one’s right to free intimate association precludes liability for discrimination in advertising for and selecting a roommate — check out my prior posts on the occasions of last May’s panel decision and last month’s order granting rehearing…
- Appellate Jurisdiction, Appellate Procedure, Attorney Fees, Costs, Federal Courts, Federal Procedure, Removal
Appeal after Remand to State Court: Was Removal Reasonable?
The Ninth Circuit reminds us in Gardner v. MEGA Life & Health Ins. Co., case no. 06-55045 (9th Cir. Nov. 19, 2007), that even though no appeal lies from an order remanding a removed action to state court, the removing defendant may appeal an order to pay costs and fees imposed in connection with the remand under 28 U.S.C. § 1447(c). Here, it pays off. MEGA was ordered to pay costs and fees when the action was remanded. It claimed the only non-diverse defendant, an individual, had been fraudulently joined for the purpose of defeating diversity jurisdiction because the statute of limitations had run as to that defendant. Applying the…
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A Group Passionate about Changes to Publication/Citation Rules
I had occasion to do some research recently into the fight for changes in the rules for publication and the California ban on citation of unpublished California opinions (Cal. Rules of Court, rule 8.1115) and ran across The Committee for the Rule of Law. According to its mission statement, it “seeks to revive full publication of all decisions of the United States Court of Appeals and the Court of Appeal of California in official reports and to eliminate all rules of court prohibiting the citation of approximately 90% of all decisions of our appellate courts to any court for any purpose.” The name of the group and the passion with…
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Can an Attorney’s Labor be Taken under the Fifth Amendment?
In Scheehle v. Justices of the Supreme Court of Arizona, case no. 05-17063 (9th Cir. – Nov. 15, 2007), the Ninth Circuit holds that a local court requirement for attorneys to serve periodically as arbitrators for nominal compensation ($75/day) is not an unconstitutional “taking” under the Fifth Amendment’s Takings Clause. Whether you think that “mandatory volunteering” is a fair trade-off for the privilege of practicing law or you prefer to think of this kind of arrangement as involuntary servitude, you should check out the posts about this case at California Appellate Report and Decision of the Day.
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Potentially Void Judgment Reversed on the Merits
Here’s a post I’ve been saving for a time where I’m too busy to spend much time on new content. I may get a post up later in the day, but in the meantime, I’ll get on my soapbox about why I think the Court of Appeal blew it on a jurisdictional question in Holland v. Union Pacific Railroad Co., case no. C052833 (3d Dist. July 30, 2007, certified for publication August 29, 2007). The case came up on appeal from a summary judgment granted on the ground that the plaintiff’s administrative complaint was untimely. The timeliness of the administrative complaint turned on whether the Department of Fair Employment and…
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Petition by One Parent in Juvenile Proceedings Does not Give other Parent Standing to Appeal Resulting Order
Rooting for the mother of your children to win her petition for modification isn’t enough to give you standing to appeal the ensuing order denying modification. Thus, in In re D.S., case no. C055069 (3d Dist. Oct. 31, 2007), the court of appeal dismisses the father’s appeal from the order denying the mother’s petition for modification. Appellant father appealed both from the order denying mother’s petition for modification and from the order terminating his and the mother’s parental rights. But he never joined in the petition, which the court denied as untimely. Since he did not join in the petition, he is not aggrieved by its denial, which had no…
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Which Legal Writing Authors are Cited the Most?
Legal Writing Prof Blog wants your help finding out.
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“Forfeiture” vs. “Waiver” of Issues on Appeal
The Court of Appeal in People v. Campos, case no. B191256 (2d Dist. Nov. 14, 2007) points out in a footnote the difference between “forfeiture” of one’s right to raise an issue on appeal and a “waiver” of that right: While the People use the term “waiver” in reference to defendants’ failures to preserve their instructional claims for appeal because they did not raise them in the court below, the correct term which we use in this opinion is “‘forfeiture.’” “‘Waiver’” is the express relinquishment of a known right whereas “‘forfeiture’” is the failure to object or to invoke a right. (In re Sheena K. (2007) 40 Cal.4th 875, 880,…
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Not Every Procedural Error is Jurisdictional
I know that sounds self-evident. But a jurisdictional challenge is your last hope on appeal if you’re relying on procedural irregularities that you let pass without objection. That’s because a jurisdictional defect can be raised any time in the course of the proceedings, so a party on appeal does not have to worry about having waived it. But the appellant in In re Angel S., case no. C054446 (3d Dist. Oct. 23, 2007, modified and ordered published Nov. 13, 2007) isn’t able to pull it off. The appellant in Angel S. had her probate guardianship of her 2-year-old great niece terminated after the girl suffered severe head injuries in appellant’s…
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Defense of the Ninth Circuit
The Ninth Circuit Court of Appeals gets plenty of criticism. Not like you need me to point it out to you, but I have done so, along with pointing out some defenses. See here, here and here. NLJ’s L.A. Legal Pad links to an article in The National Law Journal (unfortunately, behind a subscription wall) with this introduction: “[C]atcallers should recognize that 27-judge court does not get to pick its cases and faces a great mix and concentration of cases compared to other circuits, finds a story in The National Law Journal.” Might be worth checking out.
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Threats to Westlaw and Lexis
Adjunct Law Prof Blog has a post linking to information on upcoming internet repositories for federal case law, and wonders whether new services coming on line will spell the end of Lexis and Westlaw. I suspect these venerable pay services will stay one step ahead for some time. I remember seeing a debate in an internet forum once over whether it might be considered malpractice not to conduct computer-aided research. If there is a big gap in services, or the newer services cannot replicate book research, then perhaps that debate will turn to whether it is malpractice to use a less powerful computer-aided research tool.
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A Technology-Induced Rush to Dismiss?
The Ninth Circuit has some unkind words for the district judge in Calderon v. IBEW Local 47, case no. 05-56937 (November 13, 2007). The district court dismissed the case for lack of prosecution because plaintiff’s counsel did not show up at a hearing on an order to show cause re dismissal for failure to serve one of the defendants. Problem: the district court only gave notice of the OSC re dismissal via e-mail. Since plaintiff’s counsel did not consent to electronic notice (Fed. R. Civ. P. 5(b)(2)(D)) and did not regularly check his e-mail (and, given his lack of consent to electronic notice, had no obligation to do so), he…
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Appellate Jurisdiction of a Non-Final Order: Denial of Eleventh Amendment Immunity
Everyone knows the general rule that an appeal lies only from a final judgment. But there are rare exceptions. State of Alaska v. EEOC, case no. 07-70174 (9th Cir. Nov. 8, 2007) illustrates one of them. Plaintiffs were political appointees in the Alaska Governor’s Office who, after their discharge, filed claims with the EEOC against the Governor’s Office alleging various forms of harassment and/or discrimination. The Governor’s Office moved for summary judgment on Eleventh Amendment immunity. The Administrative Law Judge felt he lacked jurisdiction to decide the Eleventh Amendment issue and certified the question to the EEOC. The EEOC, holding that “an agency will not rule on the constitutionality of…
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A Pair of Interesting Posts on Discovery
Cal Biz Lit has a pair of interesting posts regarding civil discovery in California. The first links to a white paper on the subject written with the non-California lawyer in mind. The second answers whether a party, in light of the fact that form interrogatories have already been approved by the Judicial Council, may nonetheless object to a form interrogatory.
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Updates to Code of Judicial Ethics
This press release from the Judicial Council of California announces that the Supreme Court has approved several amendments to the Code of Judicial Ethics. The press release recounts the areas affected before going into significant detail on the changes: The issues covered by the amendments include handling cases with self-represented litigants, judicial disclosure, character reference letters, self-reporting by judges after being charged with or convicted of certain crimes, and misusing the prestige of the office by commissioners or referees. The updated code is available as a downloadable PDF. Click here for the PDF. The changes do not take effect until January 1, 2008.
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The Arbitration Skill Set
Are the skills and tactics best suited for arbitration very different than those routinely used in litigation? Legal Writing Prof Blog has a link to an upcoming law review article on the topic.
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Supreme Court Gets Rid of Conflicts by Dismissing Case
Laura Ernde, a staff writer at the Daily Journal, alerted me to her piece in yesterday’s edition of that paper about last week’s dismissal of the Lockheed Litigation Cases, case no. S132167. According to her article, this was one of the oldest matters on the court’s docket and the dismissal comes more than two years after briefing was complete. The dismissal apparently arises out of conflicts of interest. According to the article, four of the seven justices had recused themselves from these five consolidated toxic tort cases because they owned stock in at least one of the oil company defendants. The Supreme Court’s actual order is not posted as a…
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Employers Get Break on Reimbursement of Employee Expenses
Some of the employment law specialty blogs have been quick to provide detailed coverage of Gattuso v. Harte-Hanks Shoppers, Inc., case no. S139555 (November 5, 2007), in which the California Supreme Court, reversing the Court of Appeal, holds that an employer may meet its statutory obligation to indemnify employees for “all necessary expenditures or losses incurred by the employee in direct consequence of the discharge of his or her duties” (Labor Code, § 2802, subd. (a)) by increasing the employees’ pay or commissions instead of separately reimbursing them for their actual expenses. There are conditions, naturally. If you need recruitment help! You can read about this important FWB employment case at…
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Are You Presenting Non-Topics as Topics?
In a post called Choosing topics for topic sentences, Professor Wayne Schiess gives some great advice, backed up by commentary from judges, about topic pitfalls to avoid. Read it to find out if you are guilty of turning cases, witnesses, or dates into topics when they aren’t.