“When it comes to bizarre fact patterns, nothing beats a good employment discrimination case. Today we have two prime examples from the Seventh Circuit.” That’s how Robert Loblaw begins his post at Decision of the Day. He’s putting it mildly with respect to the second case, which involves sexual harassment at a crime lab. I’m rather glad its outside this blog’s usual jurisdiction.
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“Roundtable Weighs In on Legal Blogs”
Kimberly Kralowek at The UCL Practitioner posts “Roundtable Weighs In on Legal Blogs,” with excerpts from, and a link to, a piece in the National Law Journal last week reporting on a roundtable discussion called “Blogging, Scholarship and the Bench and Bar.” She excerpts some comments from the Ninth Circuit’s Judge Hawkins regarding law bloggers.
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State Law in a Federal Court
In Ryman v. Sears, Roebuck and Co., case no. 06-35630 (9th Cir. Oct. 12, 2007), the Ninth Circuit reiterates some very basic rules for a federal court to interpret state law. The district court refused to apply state law precedent to a matter of state law because (1) the precedent was from the state’s intermediate appellate court rather than the state’s highest court, and (2) the intermediate court’s opinion had been criticized by other federal courts. The Ninth reminds us that neither reason justifies ignoring relevant precedent from a state’s intermediate appellate court. In the absence of a relevant decision from the state’s highest court on a matter of state…
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Know Who Your Client Is
When you’re suing a client for your attorney fees, it might be helpful to know who your client is. A law firm’s failure to establish that prevents its recovery of fees in Shimko v. Guenther, case no. 05-16847 (9th Cir. Oct. 12, 2007). The Guenthers were limited partners in two limited partnerships (“the CORF entities”). When the CORF entities were sued, the Guenthers and other owners sought counsel regarding their potential personal liability for the liabilities of the CORF entities. On that much, the parties agreed. But the Guenthers claimed that the CORF entities were the clients, and that, as limited partners, they were not liable for fees. The attorneys…
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Judge Kozinski set to Take the Helm
National Law Journal’s L.A. Legal Pad links to the NLJ profile (behind subscription wall) of Judge Alex Kozinski, who takes over as Chief Judge of the United States Court of Appeals for the Ninth Circuit on December 1, the “first conservative in a decade to lead what is widely viewed as the nation’s most liberal federal appellate court.”
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A Light Posting Week
This week is likely to be light on posts, as I will be very busy on a couple of cases. I am trying to get as many posts up this weekend as I can and set them for publication over the course of the week. That means nothing especially current after Monday or Tuesday, probably. Any case law I post about will probably be no newer than Oct. 12. If I unexpectedly find time to post on something new, I’ll do it.
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2007 Weblog Awards Nominations Due by Oct. 15th (Monday!)
Sorry for the late notice, but I just found out about this. Nominations for the 2007 Weblog Awards close on Monday. These awards go far beyond law blogging, with nominations being accepted in 49 different categories. To Nominate To nominate a blog, you’ll need these three pieces of information: (1) the name of the blog; (2) the URL for the blog; and (3) the URL for the blog’s RSS or Atom feed (to get the last of these, right-click on the subscription link for the blog and copy the link address). You can click on the logo in the right sidebar (the logo in this post will not work) for…
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The Week in a Graph
As you get ready to enjoy your weekend, I thought I’d offer this picture of the last week of blog traffic. Believe it or not, there are some interesting things here. The first thing I noticed was the near perfect symmetry in the weekday points. (The first two data points are Saturday and Sunday, the last five are Monday through Friday). Too bad it looks like a dunce cap. Then I thought, wow, this really does describe some weeks. A slight uptick in productivity on Monday as we get back from the weekend, ramping up to its midweek peak, then declining again toward Friday. I’ve heard you should try never…
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Client Malpractice
Another good post from Decision of the Day, giving the skinny on a case in which the D. C. court of appeals rejects a law firm’s attempt to sue a client for fouling up a case and costing the firm its anticipated contingency fee. Gotta give the firm points for creativity. Technorati Tags: legal malpractice
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Gold . . . Pure Gold
I post a lot about legal writing, usually with reference to briefs or judicial opinions. But what about blogs? If you saw my Simply the Best Law Blogs post, you know that Decision of the Day is among those I listed. Yes, the analysis is good, the posts are extraordinarily timely, and the Ninth Circuit gets its fair share of coverage . . . but I also keep reading it because of writing like this (my emphasis): This Ninth Circuit criminal appeal is a cautionary tale about why you should do background checks on employees before you hire them – especially the white collar ones. The defendant was hired as…
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En Banc Rehearing Granted in Fair Housing Council v. Roommates.com, LLC
Last May, I covered the panel decision in Fair Housing Council v. Roommates.com, LLC (9th Cir. 2007) 489 F.3d 921. I had only been blogging for about two weeks at the time, so I stuck to the more technical aspects of the case; specifically, the issue of the scope of immunity that the Communications Decency Act provides for internet service companies. I voice my personal opinion more these days . . . but we’ll get to that in a minute. The 60-second review, for those who do not want to go to the original post, (though I encourage you to visit it because it contains so many related links) is…
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No Cert for Sentencing Cases
Federal Public Defender Steve Sady has a thoughtful and detailed post at Ninth Circuit Blog on SCOTUS’s denial of certiorari in three important sentencing cases.
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Privilege within the Company
Lawyer advises the CEO of his client on some litigation strategy. Privileged communication, obviously. CEO then meets with his VPs and shares the information with them. Privileged? I always thought it should be, and now I have the decision in Zurich American Ins. Co. v. Superior Court (Watts Industries, Inc.), case no. B194793 (2d Dist. Oct. 11, 2007) to back me up. The court holds that the trial court construed the attorney-client privilege too narrowly by exempting from discovery only those documents that “contain actual copies of letters or e-mail communications from outside counsel, or documents that have been created by counsel, or received by counsel, or that contain direct…
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Calabresi on SCOTUS under Roberts
Professor Steven Calabresi responds to a New York Times editorial with a letter to the editor: The Roberts Court: The Rule of Law, Not Ideology.
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The Great Writ
Professor Wayne Schiess excerpts The Party of the First Part by Adam Freedman, who writes against legalese at his blog of the same name. To illustrate that alternatives to word-for-word translation for Latin legal terms of art make it possible to one day abandon the Latin altogether, Freedman notes that “Great Writ” has been offered as a practical translation for: a. coram nobis b. habeas corpus c. mandamus d. certiorari You probably guessed correctly, but you’ll have to check the post to be sure.
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Important Update re Pro Bono Attorney Fees
I’ve addded a very important update to my post entitled The Pro Bono Road to Riches! The update clarifies that the court’s discussion in Cruz v. Ayromloo, case no. B190959 (2d Dist. Oct. 3, 2007) regarding the availability of attorney fees for pro bono representation is dictum (though an unusually detailed and lengthy example of such) and notes an important distinction between Cruz and earlier California cases upholding such fee awards. Both points are important to keep in mind. That post has generated a lot of attention. It’s been linked to by two very prominent law blogs, Overlawyered and The UCL Practitioner. It also earned me a phone call from…
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Summary Rejection of Plea Agreement is Error
It’s not often that you see an opinion on a writ petition start with a statement that the trial court erred but the writ is denied. The reason for that sort of introduction in Morgan v. U.S. District Court (D.Ariz.), case no. 07-70201 (9th Cir. Oct. 9, 2007), is because the petitioner sought just a little more relief than he was entitled to. Morgan accepted a plea agreement that included a sentencing term pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C). So far, so good. The stipulated sentence was near the upper limit of the guidelines but the district court opined that an upward departure may be appropriate. This led…
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$11,000 Per Hour Attorney Fee Request
Since attorney fee issues have been highlighted here lately, I thought some of you might be interested in a fee request based on an $11,000 hourly rate. You can read all about it at WSJ.com Law Blog, and you might not find it as outrageous as it first sounds . . .
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“Big Law” Comes to a Small Town
Last week’s attorney fee case of Nichols v. City of Taft, case no. F051147 (5th Dist. Oct. 2, 2007), has been written about by several blogs — Legal Pad, The Opening Brief, and California Appellate Report among them — so I’ll summarize it very briefly before giving my take. The plaintiff had hired some “big gun” attorneys from the big city to litigate her employment case in a small town. The case was settled, and the settlement provided for attorney fees to be fixed by the court. The essential holdings are that (1) before seeking statutory attorney fees in excess of fees that would be charged in the local community,…
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Latin Spell Checking
Party of the First Part has a hilarious anecdotal post on the dangers of using a word processor to spell-check briefs containing latin legal phrases. Which reminds me of this post.
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La Meme Chose – Simply the Best Law Blogs
Unless my blog is the only legal blog you look at — and what are the odds of that? — you’ve probably run across this meme elsewhere. Law bloggers are being asked to name their top 10 law blogs. Recognizing the faults with these types of lists, noted by (at least) Robert Loblaw and Robert Ambrogi and perhaps other participants in this meme, I should point out that my “best of” list is naturally skewed toward blogs relevant to the subject matter of my own. Which, of course, leaves out innumerable terrific legal blogs. I encourage everyone to check out my blogroll for additional quality blogs. I am delighted to…
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Probable Success on an Anti-SLAPP Claim
The standard for demonstrating a probability of success on a claim that a party seeks to dismiss on anti-SLAPP grounds has defied any clear definition. In Booker v. Rountree, case no. G038083 (4th Dist. Oct. 4, 2007), the court finds the standard is met under a quasi-summary judgment analysis — it is enough that the parties’ declarations gave competing versions of the facts and that Booker’s version, if believed, would lead to success. First, the facts. Two wheelchair-bound plaintiffs — Gunther and Rountree — filed separate lawsuits against Booker for violations of the Unruh Act relating to inaccessibility of Booker’s restaurant to persons in wheelchairs. Both were represented by the…
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SCOTUS Cert Pool Memos Available Online
Professor Lee Epstein at Northwestern University School of Law has posted a “Digital Archive of the Papers of Harry A. Blackmun.” Bloggers are most abuzz about the “cert pool memos” available as part of the archive. These memos provide insight into the reasons certiorari was granted or denied. For a good explanation of the cert pool memos, go to this page of the archive. I got the link from Prawfsblawg. Who got it from GWU Law Professor Orin Kerr at The Volokh Conspiracy (who gives some especially good reasons to peruse them). Who got it from How Appealing. Who got it from . . . aw, who knows?
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“Opacity and Unaccountability”
Legal Writing Prof Blog links to and posts the abstract of a law review article in which the author contends that the “opacity and unaccountability” resulting from non-publication of district court opinions creates serious problems by preventing the true state of the law from being known, subjecting it to manipulation, and distorting its development.
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The Pro Bono Road to Riches!
Don’t be shy about asking for attorneys fees. Don’t be shy to ask for more than 100 times the suggested schedule in the local rules. Don’t be shy to ask for an amount that far exceeds the amount of damages awarded to your client. Don’t be shy about anything, including the fact that you’re asking for several hundred thousand dollars in fees for a case you took on pro bono. Had O’Melveny and Myers been more forward, they might have received more than the roughly $124,000 in fees approved by the trial court and affirmed by the Court of Appeal in Cruz v. Ayromloo, case no. B190959 (2d Dist. Oct.…
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Online Supreme Court Resources
Th Ross-Blakley Law Library Blog has posted links to some Online Resources to Follow the Supreme Court. It’s not a bad set of links. But it neglects to mention SCOTUSblog and its new, super-cool feature, SCOTUSwiki. What’s a wiki, you ask? I posted this several months ago about the growth of legal wikis and the potential for court citations to wikis. A wiki with the stature of SCOTUSblog behind it makes that even more likely.
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Court of Appeal to the Rescue Again
My case law blogging has been weighted heavily toward substantive legal developments this week because I haven’t seen anything really procedurally interesting. Then along comes County of Orange v. Superior Court, case no. G037562 (4th Dist. Oct. 3, 2007) to make my week. The County appealed from an order for genetic testing to determine paternity pursuant to Family Code section 7575. While the appeal was pending, the County filed “a petition for a writ of mandate, prohibition, or other appropriate relief and requested an immediate stay of the trial court proceedings.” The court of appeal treated the petition as one for supersedeas, and granted relief (i.e., stayed enforcement of the…
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Proposition 13 and Domestic Partners
The State Board of Equalization adopted a rule exempting real property transfers to registered domestic partners via intestate succession from the definition of “change of ownership” under Proposition 13. In Strong v. State Board of Equalization, case no. C052818 (3d Dist. Oct. 2, 2007) County assessors claimed the rule was unconstitutional because such exceptions can only be implemented by constitutional amendment. The court disagrees. Proposition 13 bases property taxes on value at the time of acquisition of the property, and a reassessment is triggered by a change in ownership. Here, the State Board of Equalization extended to domestic partners an exception to the definition of “change in ownership” similar to…
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CALCRIM No. 2302 Survives Appellate Challenge
Revisions to jury instructions are generally supposed to make things easier for juries. In People v. Montero, case no. C052423 (3d Dist. Oct. 2, 2007), the defendant contended that Judicial Council of California Criminal Jury Instructions (2006-2007), CALCRIM no. 2302, concerning the elements of the crime of possession for sale of a controlled substance, made it just a little too easy for the jury to convict because it allegedly does not require the jury to find that defendant “knowingly exercised control” over the controlled substance and for failing to use the term “dominion and control” in the element of possession. (PDF download of entire CALCRIM available here.) Comparing CALCRIM 2302…
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DNA Collection Survives Another Constitutional Challenge
DNA collection while on supervised release is constitutional, even if the terms of supervised release in your original sentence did not provide for it and the DNA Analysis Backlog Elimination Act (“DNA Act”), which mandates it, became effective only after you were sentenced. In United States v. Lujan, case no. 02-30237 (9th Cir. Sept. 25, 2007), the court rejects arguments that collection under these circumstances violates the Fourth Amendment and Ex Post Facto Clause, constitutes an unlawful bill of attainder, and violates the separation of powers. Lujan’s appeal was stayed pending the outcome in two other appeals, and the outcomes of those cases allow the Ninth to dispose easily of…