• Law Practice & Marketing,  Legal Writing

    OMG! Can you imagine writing an argument in the style of an email or a text?

    If not, then why write emails and texts the way you do? In this article at The Federalist, staff writer Philip Wegmann takes millennials and curmudgeons alike to task for degrading the quality of written communications. The piece starts with this: On the floor of the Senate, surrounded by elected officials and important dignitaries, an eccentric inventor started texting. On May 24, 1844, with an electrical wire strung from DC to Baltimore, Samuel Morse transmitted the first telegraph, forever transforming the world. Reflecting on the divine prov­idence of this tech­no­logical leap forward, Morse tapped out a message of dashes and dots that read, “What hath God wrought?” Now Kelly texts Becky, “OMG! Look at her butt!” and…

  • Equity,  Estoppel

    You can’t change the rules on appeal just because you don’t like the outcome at trial: how judicial estoppel can foil your appeal

    California trial courts classify civil cases as either “limited jurisdiction” or “unlimited jurisdiction,” depending on the amount in dispute. If the amount in dispute is $25,000 or less, the case is a limited jurisdiction case. If the amount in dispute is more than $25,000, it is an unlimited jurisdiction case. Thus, a court in a limited jurisdiction case cannot award more than $25,000  . . . except under the quirky circumstances of AP-Colton, LLC v. Ohaerie, case no. E059505 (4th Dist., Sept. 15, 2015). AP-Colton is a commercial landlord-tenant dispute, in which the landlord originally sued to evict the tenants and for damages of less than $25,000. The tenants surrendered the premises,…

  • Legal Writing

    Jargon-filled, academic writing has no place in your briefing on appeal — but does it have its place?

    Maybe so, according to Professor Cass Sunstein of Harvard Law School, if this abstract for his article summarizes it accurately: Many people, including many lawyers and judges, disparage law reviews (and the books that sometimes result from them) on the ground that they often deal with abstruse topics, of little interest to the bar, and are sometimes full of jargon-filled, excessively academic, and sometimes impenetrable writing. Some of the objections are warranted, but at their best, law reviews show a high level of rigor, discipline, and care; they have a kind of internal morality. What might seem to be jargon is often a product of specialization, similar to what is observed…

  • New Trials,  Post-Trial Practice

    “Close” counts in horseshoes and hand grenades, but not when it comes to identifying “new” evidence in a new trial motion

    For purposes of a new trial motion, evidence is considered “newly discovered” if the party seeking the new trial “could not, with reasonable diligence, have discovered and produced [the evidence] at trial.” (Code Civ. proc., § 657, subd. 4.) Suppose the evidence is available just a few days before trial, but expert analysis can’t be completed until afterward? That’s easy, you day. It’s trial, for crying out loud! You get your expert on it right away! Let’s see if your answer is the same under the facts of Shiffer v. CBS Corp., case no. A139388 (1st Dist., Sept. 8, 2015), an asbestos exposure case, in which the new trial motion was filed after the defendant prevailed on…

  • ADR,  Appellate Jurisdiction,  Appellate Procedure,  Arbitration

    No appeal from order vacating partial arbitration award

    One of the frustrations for parties forced to arbitrate their claims rather than pursue them in court is the unavailability of a direct route of appeal from the arbitration award. Generally, the only way to get out from under an adverse award is to petition the superior court to vacate the award (Code Civ. Proc., § 1285 et seq.), and then only on very limited grounds such as fraud, corruption, or misconduct by the arbitrator, generally unrelated to the substantive merits of the decision. If you’re on the other side — i.e., you were the prevailing party in the arbitration — you can take some comfort from the fact that if the…

  • Mandamus/Prohibition,  Writ Practice,  Writ Review

    Construction defect case demonstrates a “two-fer” on grounds for obtaining review by petition for writ of mandamus

    I frequently get calls from prospective clients who are “rarin’ to go” on a writ petition to challenge a trial court ruling that has them outraged but is not immediately appealable. That “rarin’ to go” attitude usually does not last beyond the point where I tell them that more than 90% of writ petitions are summarily dismissed without the petitioner ever being heard on the merits. That news usually significantly diminishes the will to petition the Court of Appeal, even as it intensifies the prospect’s outrage, as the prospect feels aggrieved not just by the trial court ruling but also by the fact that the odds of any recourse are…

  • Anti-SLAPP,  Appeals,  Courts,  Sanctions

    Sixth District Court of Appeal offers the legislature some advice on amending the anti-SLAPP statute

    If you just lost your appeal, handled by attorneys at a high-powered law firm, with fees approaching – oh, heck, who knows, but three lawyers billing at a “BigLaw” firm have to run up a pretty hefty bill on a case potentially worth billions of dollars – you might not be happy with language in the introduction of the opinion characterizing your appeal as “utterly without merit” and noting that the court declined imposing sanctions only because the court did “not wish to further delay the long-overdue trial of the merits of [the] action.” That’s exactly how the court opened its opinion in Hewlett-Packard Co. v. Oracle Corp., case no. H039507 (6th Dist. Aug. 27,…

  • Humor

    Friday Appellate Humor

    Here’s the graphic from a good New Yorker cartoon about appeals: To avoid exceeding fair use, I’ve left off the punchline. Here’s a clue: there’s only one judge on the bench, so you know this cartoon depicts the trial court instead of the appellate court. To see the punchline, click here or click the image. If you have any ideas for your own punchline, why not share them in the comments?

  • Announcements,  e-Filing,  Legal Technology

    Some technical help for e-filing in the Court of Appeal

    This week, the Second District Court of Appeal published a terrific guide for creating electronic documents. (PDF link) The guide is broken down into a section on briefs and a section on appendices, and is meant as a technical guide, not a set of rules for filing. It is thus helpful regardless of the district your appeal is in. The guide provides the nitty-gritty detailed steps, with illustrations, for creating, editing, and formatting documents for electronic filing, including instructions for safely and securely redacting information, adding bookmarks, and making scanned documents text-searchable, among other things. Unfortunately, instructions on hyperlinking have been deferred to a future edition. I wouldn’t quite call it Electronic Filing for Dummies, though…

  • Decision on Appeal,  Judgment

    The Court of Appeal Time Machine – Interest Calculations on Modified Judgments

    If you obtained a judgment against your former client for over $7.7 million, and had the court of appeal knock it down to around $1.7 million, and the trial court entered judgment in that reduced amount 14 months after the date of the original judgment, you would want interest to run on the judgment — even from the reduced amount — from the date of the original judgment, right? Of course you would. After all, 14 months of interest at a simple 10% on the $1.7 million amount is nearly $200,000. That’s not pocket change. (Well, not for me, anyway.) But in Chodos v. Borman, case no. B260326 (2d Dist. August 18, 2015),…

  • Arbitration,  Standard of Review,  Statutory Construction

    The standard of review on appeal regarding enforceability of arbitration clauses

    As I’ve mentioned before, the standard of review is not always clear. One sometimes has to “drill down” past the obvious, and the “abuse of discretion” standard is full of nuance. The parties’ briefs may even fight over which is the correct standard of review to apply, or the cases may be split on the issue. Sometimes, where the standard is in dispute, it doesn’t matter, because the outcome is the same under either standard. There is no question as to what standard of review applies in yesterday’s decision in Carlson v. Home Team Pest Defense, Inc., case no. A142219 (1st Dist., August 17, 2015), but the case nonetheless has a lesson in…

  • Appellate Procedure,  Criminal Law,  Standard of Review

    How hanging out with the wrong crowd might doom your appeal of your criminal conviction

    Don’t be too alarmed at the title of this post. I’m not saying that the Court of Appeal will take the character of your known friends into account when deciding your appeal. I’m referring to convictions arising out allegations that members of a small group participated in a crime together. If there is no direct evidence that a particular defendant did any particular act, might being one of the group on the scene be enough to convict? That all depends on what the defendant did with the group and what the group did. In In re Kevin F. (People v. Kevin F.), case no. A140445 (1st Dist., August 10, 2015), the court…

  • Announcements,  California Courts,  Record on Appeal

    Are records on appeal from the Los Angeles Superior Court about to get better?

    The headline is not a dig at anyone at the Los Angeles Superior Court (LASC). It refers to the impact of the statewide court budget crunch, which led many courts to stop providing court reporters as a matter of course. Faced with having to engage court reporters on their own, some litigants were foregoing the expense, at risk of having records inadequate to prosecute their appeals. As a result, parties are appealing decisions without the reporter’s transcript that they would have been able to order under the old system. That can spell trouble for an appeal. Last Friday, the LASC announced that it is hiring court reporters. Actually, I can’t tell…

  • Announcements,  Legal Writing,  Summary Judgment,  Summary Judgment and Summary Adjudication,  Waiver of Issues

    SB 470 codifies Reid v. Google, Inc., provides that objections to summary judgment evidence are preserved for appeal

    On Monday, according to this article at The Recorder, Governor Brown signed SB 470, amending Code of Civil Procedure section 437c, which governs procedure for motions for summary judgment and summary adjudication. For appellate practitioners, the significance of the bill lies in its codification of Reid v. Google, Inc. (2010) 50 Cal.4th 512. Reid held that objections to evidence submitted in support of a motion for summary judgment are preserved for appeal even if the trial court fails to rule on the objections. Prior to Reid, the courts were split on whether such objections were preserved. I’m unaware of any lingering controversy over the issue since Reid, but it is nonetheless satisfying to see its holding codified.…

  • Announcements

    Changes to the blog

    Regular readers will note a different look to the blog, which I implemented over the weekend. I actually liked the old look better, but my WordPress upgrade “broke” the Headway theme I used to create it. So, I’ve used a stock WordPress theme, which I was able to customize only in color and font choice. I’ll get back to a custom look once I figure out the new version of Headway, but that may be several months from now. Upgrading my WordPress installation has significant “back end” benefits for me (most notably, better backup capabilities and comment spam prevention), but also has several benefits for readers. The broken commenting function has been…

  • Legal Education,  Legal Research,  Legal Technology

    Apparently, the law library of the future is going to be one big Kindle

    The Journal of the Legal Writing Institute has just published a short essay by Professor Ronald E. Wheeler of Suffolk University Law School, titled “Is This the Law Library or an Episode of the Jetsons?” The big takeaway: the library is going to resemble a super-advanced Kindle and its patrons will look like they are parts of the Borg Collective: It will include technologies that we know about and technologies that are beyond our imaginations. Things like retinal and holographic displays are predicted to be in use in the next 5 to 10 years. Lawyers, law professors, and other law library patrons will be browsing touchable, holographic shelves to select volumes instead…

  • Appellate Procedure,  Legal Writing Blogs and Resources,  Mediation,  Settlement on Appeal

    Is your notice of appeal likely to generate settlement leverage?

    Every so often, I get a prospective appellant who is convinced that filing his notice of appeal will intimidate his adversary, prompting him to “come to the table” to hammer out a deal. Good luck with that. It’s not that cases cannot settle on appeal. It’s that most of the time, the mere act of appealing or filing a writ petition does not generate much leverage because the odds are inherently against the success of the appeal. Consider that the reversal rate on appeals generally hovers between 20% and 25%. Would you be intimidated by those odds? That said, cases do settle on appeal, and some factors in a given…

  • Announcements,  California Supreme Court,  Stare Decisis

    California Supreme Court invites your comment on proposed changes to publication rules involving cases accepted for review

    I expect that in this age of electronic research, most lawyers have experienced the frustration of finding the “perfect” case, only to learn it is unpublished and therefore could not be cited as precedent. (See rule 8.1115(a), Cal. Rules of Court.) Even in the “old days,” when research was limited to hard copy books, you could still find the perfect cases whisked out from under you, either because it was later disapproved or, more frustratingly, had been accepted for review by the Supreme Court, which has the effect of automatically de-publishing the case. (See rule 8.1105(e)(1), Cal. Rules of Court.) That may change. Yesterday, the Supreme Court posted for comment…

  • California Procedure,  Judges,  Reconsideration

    Don’t treat one superior court judge as the reviewing court for another

    Writs and appeals are sometimes not the only routes (or even the preferred routes) to relief from an adverse order or judgment. Motions for reconsideration, post-trial motions for new trial or to vacate the judgment, and motions to set aside a judgment all have the possibility of getting you a “reversal” of sorts without ever leaving the superior court. I’ve written before about how a superior court judge may change a prior interim ruling on his own motion, even when the decision to do so is triggered by a faulty motion for reconsideration. The chief limitation on this practice is that, in most cases, one judge on a superior court…

  • Appellate Procedure,  Community Property,  Family Law,  Standard of Review

    The appellate angle in Marriage of Davis

    Family law attorneys are buzzing this week about Monday’s unanimous Supreme Court decision in Marriage of Davis, case no. S215050 (July 20, 2015). The Metropolitan News-Enterprise summed up the holding this way: “A married person cannot be considered separated, and thus permitted to keep his or her earnings as separate property, while continuing to live with his or her spouse[.]” The court itself referred to its ruling as a “bright-line” rule. Not so fast, folks. My friend Claudia Ribet has a column in today’s Daily Journal (link requires subscription) discussing the subtleties in the decision and concurring opinion, concluding that it may not even reduce litigation over the “separate and apart” issue…

  • Announcements,  Blogging

    Congrats and thank you to the new TEN Networks Blog (and welcome, TEN members!)

    The TEN Networks, Inc. launched its blog last week, and the editors graciously designated The California Blog of Appeal as one of its Member Blogs of the Month, along with with Elderupdates.com, the blog of Encino elder law attorney Brian Shepphard. The TEN Networks is the umbrella organization for two business networking groups: The Esquire Network, a fantastic attorney group with a unique meeting structure, of which I am an enthusiastic member; and The Executive Network, which is open to other professionals. I encourage you to check them out. Finally, how fortuitous (divine?) that TEN’s new blog would honor this one around the time I made my shameless plea for…

  • Judges,  Legal Technology

    Federal Judge: Appellate Judges Know Nothing About Tech

    Those words after the colon come straight from the headline at Bloomberg News, where you can treat yourself to a 40-minute interview with federal district judge Shira A. Scheindlin of the United States District Court for the Southern District of New York, conducted at the 2015 Big Law Business Summit. The Bloomberg headline may exaggerate Judge Sheindlin’s position somewhat. Her comments on technology are directed mostly to the technology involved in discovery of electronically stored information (“ESI”). Given that she is referring to ESI discovery, her view on appellate judges’ knowledge is neither shocking nor insulting. As in California sate courts, most discovery rulings are not immediately appealable. They may…

  • Announcements,  Appellate Blogs,  Blogging

    Shameless request for nominations

    Expert witness service The Expert Institute is taking nominations for entries in its 2015 Best Legal Blog Contest. Do I need to say anything more? OK, here comes the shameless part. Whether you are a years-long fanatical subscriber to this blog whose first action every morning upon waking is to grab your iPhone off your nightstand and check your RSS reader to see if there are any updates to this blog, or someone who just came across this blog yesterday, give some thought to nominating this blog. If you do, you should nominate it in the “niche” category. (If Best Blog By A Guy Who Does The Best He Can With…

  • Appellate Procedure,  Attorney Fees,  Standard of Review

    Overcoming the abuse of discretion standard on appeal of an attorney fee award: what did the trial court actually do?

    Respondents use the “abuse of discretion” standard for all it’s worth when defending against appeals, and they should. Often, it’s one heck of a shield. But there are limits to relying on this standard of review, and the Court of Appeal will reverse in appropriate circumstances. One such example is last week’s decision in McKenzie v. Ford Motor Co., case no. G049722 (4th Dist., July 10, 2015). Plaintiff rejected one settlement offer in this “lemon law” case, but settled a few months later. The settlement was entered as a judgment. It required Ford to buy back the “lemon” automobile and allowed the plaintiff the option of accepting payment of $15,000…

  • Jurisdiction,  New Trials

    The deadline for filing the memorandum and affidavits in support of a motion for new trial is not jurisdictional

    Some parties try to make jurisdictional issues out of non-jurisdictional ones. You can hardly blame them, given the fatal nature of jurisdictional defects. One recent attempt — but ultimately an unsuccessful one — was in Kabran v. Sharp Memorial Hospital (2015) 236 Cal.App.4th 1294, in which the appellant (Sharp) claimed that the trial court lacked jurisdiction to grant a new trial. That’s a somewhat surprising contention, seeing as how the respondent timely filed her notice of intention to move for a new trial (Code Civ. Proc., § 659, subd. (a)) and the court granted the motion within the 60-day jurisdictional deadline (Code Civ. Proc., § 660) on a ground stated in…

  • Attorneys,  Ethics,  New Trials

    Egregious attorney misconduct at trial leads to reversal on appeal

    When I was a young lawyer, a mentor told me to practice as if the rules will always be strictly enforced against me and my client, yet never enforced against the other side. I always took that as a bit of rhetorical flourish meant to emphasize careful compliance with the rules and to be ready for anything from the other side, but my mentor’s admonition appears to have been manifest in the trial leading up to Martinez v. State of California Dept. of Transportation, case no. G048375 (4th Dist., June 12, 2015, certified for publication July 7, 2015). The misconduct paid off in the short term by getting a defense verdict,…

  • Appellate Jurisdiction,  Appellate Procedure,  Dismissal

    Don’t give up when your motion to dismiss an appeal is summarily denied

    The term “summary denial” sounds pretty bad when you are the party seeking relief. It has an air of finality. Sheesh, not even a hearing on the merits! But a summary denial is not final in every context. This was recently pointed out in Ellis v. Ellis (2015) 235 Cal.App.4th 837, in which the respondent moved to dismiss the appeal as untimely. The court summarily denied the motion. After the appeal was fully briefed, however, the court advised the parties to be prepared to address the timeliness of the appeal at oral argument, heard argument, and ultimately granted the motion. While I am sure the respondent would have preferred such a ruling…

  • Appellate Procedure,  Dismissal,  Jurisdiction,  Sanctions

    How the nature of your appellate challenge can affect whether your appeal is dismissed for failure to obey trial court orders

    The disentitlement doctrine allows a court of appeal to dismiss an appeal as a sanction for the appellant’s refusal to comply with trial court orders that remain in force while the appeal is pending. The lesson to be learned from today’s decision in Ironridge Global IV, Ltd. v. ScripsAmerica, Inc., case no. B256198 (2d Dist., June 30, 2015) comes from its discussion of how the right kind of appellate challenge to a trial court order — specifically, a jurisdictional challenge — can serve as a defense to the imposition of a dismissal sanction under the disentitlement doctrine. Unfortunately for the defendant-appellant in Ironbridge, calling a challenge a jurisdictional one does not…

  • Appellate Procedure,  Judicial Notice,  Waiver of Issues

    No judicial notice for a law of physics, but for a different reason than you might expect

    I had to take the “high track” physics courses as part of my electrical engineering major curriculum at Canoe U. In fact, I liked my physics classes more than my engineering classes, and regret to this day I did not major in physics. So the discussion in Bermudez v. Ciolek, case no. G049510 (2d Dist., June 22, 2015), in which the court refuses to take judicial notice of a law of physics, caught my eye. Bermudez is an automobile accident case, in which defendant Ciolek was the driver of a car that collided with a second car driven by defendant Heacox, which in turn struck plaintiff, who was on the…