Thanks to the Second Opinions blog, I found Law Dawg Blawg today, which has this post summarizing an article at Legal Times by a Big Law partner about his concern that young associates rely too much on online legal research tools, and what his firm did to encourage young associates to get into the library and utilize print resources. This should be of particular interest to “old school” attorneys. I suspected that some lawyers were moving away from print because this blog gets hits from law firms running searches in Google. I don’t expect to replace Westlaw anytime soon, but I find it interesting that the searchers at these firms…
-
-
Why the Ninth Was Reluctant to Depart from Sister Circuits on Patent Question
If you’re a federal circuit judge, and you and your colleagues on the panel are convinced the court should come out one way, but all other circuits to consider the question have come out the other way, what do you do? “Circuit splits arise all the time,” you tell yourself. “We should decide this the way we see it.” Well, maybe that’s what you do most of the time. But in Zila, Inc. v. Tunnell, case no. 05-15031 (9th Cir. Sept. 5, 2007), the Ninth Circuit shows deference to the other circuits’ interpretation of Supreme Court precedent because the issue involves an inventor’s right to royalty payments after expiration of…
-
Primary Assumption of Risk Doctrine Applies to Golf
If I didn’t already play golf, Shin v. Ahn, case no. S146114 (August 30, 2007), might be enough to scare me out of doing so. In the course of reaching the conclusion that the primary assumption of risk doctrine applies to golf and thus reckless conduct, not mere negligence, is necessary to impose liability, the California Supreme Court reviews several cases where plaintiff was hit by a golf ball, often at extremely close range and at least once smack in the face. Yikes. The lesson to be drawn from Knight [v. Jewett (1992)] 3 Cal.4th 296, and its progeny, as well as the weight of authority in sister states, is…
-
Challenging Voidable Judgments
A short lesson in the difference between void judgments and valid but voidable ones is provided in Baron v. Fire Insurance Exchange, case no. H029830 (6th Dist. Sept. 4, 2007). While I think the court’s decision not to avoid the “valid but voidable” order in this case is the correct one, I am a bit surprised by its rationale. Two partners to a venture concerning the insured real property arbitrated a dispute between them. During the arbitration, the property suffered a fire. The insured partner submitted an insurance claim, and the arbitration award included the appointment of a receiver to take possession of the property and any insurance proceeds, including settlement proceeds from…
-
New California Law Blog
Matthew Stucky, a newly admitted attorney in San Diego, launched the Cal. Civ. Blog three days ago. He describes his blog as “self-serving” because it is intended to force him to keep up with recent civil decisions, and any information it provides to others is a by-product of that goal. This is far more humility than most bloggers have (including me)! Matthew would seem to be a blogger that even Judge Kozinski — who famously derided bloggers for their lack of humility — would like. Matt, welcome to the blogosphere, welcome to the bar, and good luck with both. I think launching your blog this early in your career is an excellent idea, and I’m sure we will…
-
Would You Care for Little Latin with That?
Armillary Observations expands on a brief Volokh Conspiracy post regarding a good-natured disagreement between judges over the continuing vitality of Latin in the law.
-
Federal Vexatious Litigant Designation not Immediately Appealable
When a party and his attorney are sanctioned as vexatious litigants and ordered not to file additional complaints without court approval, must they immediately appeal from those orders (the “pre-filing orders”) or appeal instead from the subsequent entry of final judgment? That was the procedural question posed in Molski v. Evergreen Dynasty Corp., 05-56452 (9th Cir., Aug. 31, 2007). Evergreen moved to dismiss the appeals, contending that Molski and his lawyers’ joint notice of appeal, filed within 30 days of entry of the judgment, was filed more than 30 days after entry of their respective pre-filing orders. The Ninth says the appeals are timely. The order against the attorneys is…
-
Elder Abuse Act Protective Orders Reviewed for Abuse of Discretion
In Bookout v. Nielsen, case no. G037727 (4th Dist. August 31, 2007), the Court of Appeal was faced for the first time with the question of the proper standard of review on appeal from an Elder Abuse Act protective order. (Welf. & Inst. Code, § 15657.03.) Citing to the statutory language that allows an Elder Abuse Act protective order to issue upon proof “to the satisfaction of the court,” and noting that the Domestic Violence Protection Act contains identical language for the standard for issuing the order, the Court of Appeal adopts the standard of review applicable to appeals of DVPA protective orders: abuse of discretion. Of course, the factual…
- Appellate Jurisdiction, Appellate Procedure, Constitutional Law, Criminal Procedure, Double Jeopardy, Federal Procedure
Expansive Congressional Authorization for Government Appeals in Criminal Cases
In U.S. v. Stanton, case. no. 06-10519 (9th Cir. August 31, 2007), Stanton was convicted by a U. S. Magistrate Judge in a bench trial. He appealed to the District Court, which reversed his conviction. The government appealed from the District Court order. Stanton makes a two-pronged challenge to the government’s right to appeal. First, he contends that jurisdiction is lacking because the government may appeal only where authorized by Congress and the Criminal Appeals Act, 18 USC §3731, does not explicitly authorize the government to appeal from a district court order reversing a conviction entered by a magistrate and ordering an entry of acquittal. Right on both counts, says…
-
How — and Why — to Write Great Thesis Sentences
Professor Michael Higdon of UNLV’s William S. Boyd School of Law has an excellent article about thesis sentences in the September 2007 Nevada Lawyer. It’s so good, you don’t want opposing counsel to see it, at least not until after they’ve written their briefs. Of particular value to appellate lawyers is this point about the value of good thesis sentences to the writer: Finally, thesis sentences are particularly beneficial for the legal writer who is seeking to persuade. Psycholinguists (scientists who study the psychology of language) have discovered that readers subconsciously pay closer attention to things that come at the beginning and end of a document or a discreet unit…
-
The Dictionary’s Role in Statutory Interpretation
Remember the response you got every time you asked your teacher how to spell a word? “Look it up on the dictionary.” To which we all mumbled under our breath, “How am I supposed to look it up if I don’t know how to spell it?” Well, there may be another question that gets the same answer to “look it up in the dictionary.” That question is, “How do I interpret this statute?” Honest. Check out University of Louisville’s law school Library Director Kurt X. Metzmeier’s paper at SSRN (Social Science Research Network) entitled “You Can Look it Up: The Use of Dictionaries in Interpreting Statutes.” No mumbling, now. Here’s…
-
A Call to Law Professors and Those Who Know Them
Prawfsblawg posts Are you now or have you ever been a member of a debate team? It is a call for participation by law professors in a worthwhile project. (For that reason, this post incorporates almost the entirety of the linked post. I’m sure Prawfsblawg won’t mind if it helps get the word out, but I’ll feel less guilty about it if you click the link to the Prawfsblawg post.) Jim Speta , a law professor at Northwestern, is trying to identify law professors who debated in high school or college. He’s seeking to make the case that debate provides skills and interest that lead students to consider law school,…
-
Decision of the Day Defends the Ninth
The Ninth Circuit, as everyone knows, gets criticized a lot. But Does the Ninth Get a Bad Rap? That’s the title of a post by Robert Loblaw at Decision of the Day, which posits that reversals of some Ninth Circuit decisions aren’t always just about the Ninth Circuit. He notes that commentators like to jump on the big reversals as evidence that the Ninth is out of whack, but: there are plenty of cases where the Supreme Court uses an appeal from the Ninth as an opportunity to reverse decisions from other circuits, albeit with much less fanfare. He describes one recent instance in his post.
-
Jurisdiction over Church Property Issues
When does a Southern Baptist church cease to be a Southern Baptist church? I know that sounds like a set-up, but there’s no punchline here. It’s a serious question, and it was at the heart of a dispute decided by the a Monterey County Superior Court. In Central Coast Baptist Assn. v. First Baptist Church of Los Lomas, case no. H029958 (6th Dist. August 23, 2007), a reversionary clause in First Baptist’s constitution provided that its assets would pass to Central Coast, a voluntary association of Baptist churches, in the event of a “dissolution or winding up” of First Baptist or if it should “cease to be a Southern Baptist…
-
Free U.S. Case Law Database Launched at Columbia
Columbia Law School issued this press release last week regarding its launch (in conjunction with University of Colorado Law School) of a free database of U.S. Supreme Court and Courts of Appeals decisions dating back to the early 1990s. The school plans to expand the database in the future and says that its AltLaw.org service “has the potential to transform the national landscape of case law resources.”Thanks to Legal Writing Prof Blog for the link.UPDATE (8/30/07): More on the project at Info/Law. Thanks to Law School Innovation for the link.
-
Woo-Hoo! We’ve Hit the Big Time!
One sort, anyway. My post on alternative fee arrangements in appellate practice is featured in Blawg Review #123 hosted by Texas Appellate Law Blog. According to the Blawg Review website: Blawg Review is the blog carnival for everyone interested in law. A blog carnival is a traveling post about a topic or theme. For example, there’s Carnival of the Capitalists, concerning business and economics, while Grand Rounds is about medicine and healthcare, and Blawg Review has topics discussed by lawyers, law students and law professors. Each weekly issue of Blawg Review is made up of article submissions selected from the best recent law blog posts. The blogger that puts together…
-
Grand Jury Secrecy vs. Civil Rights Plaintiff’s Right to Discovery
If your civil rights lawsuit alleged you were imprisoned for 24 years for a murder you didn’t commit and your conviction was based on the perjured testimony of a jailhouse informant, you might want to take a peek at the records of a grand jury investigation into the misuse of such informants during the time you were convicted. But there’s that pesky issue of grand jury secrecy, so the trial court rules that you have no right to access those records. This is what happened to Thomas Lee Goldstein, but he has a second chance after Goldstein v. Superior Court, case no. B199147 (2d Dist. August 23, 2007), in which…
-
Bibliographies re Appellate Oral Advocacy and Brief Writing
Touro College’s Jacob D. Fuchsberg Law Center provides this list of research guides available as PDF downloads. Included are these self-explanatory titles: and “May it Please the Court . . . “: A Select Bibliography of Appellate Oral Advocacy Materials Best Brief: A Select Bibliography of Brief Writing Materials. Both appear to be limited to materials available at the center’s library, but there’s enough reading on each of them to keep anyone but Evelyn Wood busy for a long, long time.
-
District Court Orders and Opinions Available for Free at Justia
Thanks to Appellate Law & Practice, I (and you) now know that some District Court opinions and orders are available for free at Justia.com. A brief discussion of the service is at LibraryLaw Blog.
-
Ninth Circuit: Anticipated Attorney Fees on Appeal Can be Considered in Calculation of Appeal Cost Bond — Sometimes
In Azizian v. Wilkinson, case no. 05-15847 (August 23, 2007), the Ninth Circuit faced, for the first time, an issue on which other circuits have split: “whether, or under what circumstances, appellate attorney’s fees are ‘costs on appeal’ that a district court may require an appellant to secure in a bond ordered under Federal Rule of Appellate Procedure 7.” It provides its conclusion at the outset of the opinion: We conclude that a district court may require an appellant to secure appellate attorney’s fees in a Rule 7 bond, but only if an applicable fee-shifting statute includes them in its definition of recoverable costs, and only if the appellee is…
-
Alternative Fee Structures in Appellate Practice
D. Todd Smith at the Texas Appellate Law Blog has a nice post on the suitability of alternative fee structures for appellate practice. I generally concur with his post. Appeals are far more predictable than the progress of a lawsuit in the trial court, which generally enables an appellate practitioner to estimate the time that will be spent on a case and formulate a fair flat fee. Smith also addresses contingent fees. Like Smith, I too was a “big firm” lawyer and enslaved by the concept of the “billable hour” for years. As a solo, I am far more conscious of every minute I spend on a case. The freedom that…
-
The Humble Opinions of Judges
Professor Orin Kerr has a fun post at The Volokh Conspiracy about the use of the phrase “in my humble opinion” in judicial opinions. As with most posts at the Conspiracy, it generates quite a few comments — some serious, some not.
-
Published Order Granting Extension of Time for Government to File Brief in Death Penalty Case
Professor Martin at California Appellate Report serves up some comments, with his usual good humor, on a Ninth Circuit order granting the government more time to file a brief in a death penalty appeal. Yes, even an order in a death penalty case can be humorously analyzed, and without violating good taste.
-
Review for Abuse of Discretion Impossible when Record Fails to Disclose Reasons for Decision
Gomez v. Gonzales, case no. 06-70941 (9th Cir. August 22, 2007) demonstrates how the abuse of discretion standard of review can be undermined by a weak record. The weak record in this case results in remand instead of a decision on the merits. The Board of Immigration Appeals denied a motion by the Garcias for leave to file a late brief. The grant or denial of such a motion is within the BIA’s discretion. Here, however, the BIA’s order offered no “reasoned explanation” for its denial of the motion: Denying the Garcias’ motion, the BIA conclusorily reasoned: “We find the reason stated by the respondents insufficient for us to accept…
-
Study of Sanctions in Appellate Proceedings
Ben Shatz, whom I’ve had the pleasure of meeting and corresponding with from time to time, has co-authored (with JoAnne Sweeny) an article recently published as “The Price of Frivolity: A Longitudinal Study of California Appellate Sanctions” (2007) 28 Whittier L.Rev. 1087. Here’s how the article describes itself in its introduction: This article attempts to fill that void [in literature regarding sanctions] by exploring the “5 W’s” — who, what, where, when and why — of California appellate sanctions by analyzing court of appeal sanctions awards from 2002 (the first year unreported cases were included in online search engines) through 2005. More specifically, this article describes which courts award sanctions,…
-
Pre-Opinion Settlement Disclosed after Publication of Opinion Requires Vacation of Opinion and Dismissal for Mootness
On June 29, the Ninth Circuit reversed a preliminary injunction order that prohibited National Beverage Corporation “from selling or marketing its line of ‘Freek’ energy drinks in their current containers or containers confusingly similar to” the trade dress of plaintiff Hansen Beverage Company’s “Monster” energy drink. The decision gathered significant attention from blogs in the Ninth Circuit. Seattle Trademark Lawyer and IP Law Observer gave rather objective analyses. California Appellate Report and Appealing in Nevada were more opinionated about the result, appearing to come down on opposite sides. (Readers curious to see the packaging of the products can see the appendix to the opinion or, better yet, see the sharp…
-
Mootness Requires Loss of Existing Controversy, Not Alternate Forum for Resolution of Issues on Appeal
“The ground has shifted considerably since the Marlins filed their original complaint for a declaration of rights.” If that sounds to you like a court about to examine whether that shifting ground has mooted the appeal, then you have a good ear. In Marlin v. AIMCO Venezia, case no. B188407 (2d Dist. August 16, 2007), tenants (or “Marlins”) filed a declaratory judgment action against their landlord for a declaration of their respective rights under the Ellis Act, which allows “landlords who comply with its terms to go out of the rental business by evicting their tenants and withdrawing all units from the market even if doing so would otherwise violate…
-
Putative Class Members Lack Standing to Appeal after Dismissal of Uncertified Class Action
The appeal in Employers-Teamsters v. Watson Pharmaceuticals, case no. 04-56791 (9th Cir. August 16, 200) was from four consolidated actions brought by investment advisor Anchor Capital against Watson Pharmaceuticals, alleging violation of the securities laws. The trial court considered motions for the appointment of lead plaintiff pursuant to the Private Securities Litigation Reform Act (the “PSLRA”), 15 U.S.C. § 78u-4(a), including a motion from the appellants. Anchor Capital was appointed lead plaintiff. After Watson Pharmaceuticals successfully moved to dismiss on Rule 9(b) grounds (insufficiently specific pleading of fraud, Fed. R. Civ. P. 9(b)), the court granted Anchor Capital’s request to dismiss all four actions with prejudice. The appellants never filed…
-
Nonsuit after Opening Statement in Bench Trial
Lingenfelter v. County of Fresno, case no. F005021 (5th Dist. August 16, 2007) unknots a sticky procedural question: In the published portion of this opinion, we hold that a motion for nonsuit, pursuant to Code of Civil Procedure section 581c, subdivision (a), does lie in a trial by the court. We publish on this issue because the disagreement of our concurring colleague demonstrates that there is a conflict of authority. More specifically, the court holds that nonsuit is available in a bench trial immediately after the close of plaintiff’s opening statement. The court’s exercise in statutory interpretation of Section 581c is detailed. It examines not only Section 581c, but also…
-
The Addition of Fees and Costs to a Judgment Does Not Restart The Clock on Time to Appeal from the Judgment
Torres v. City of San Diego, case no. D049111 (4th Dist. July 25, 2007, ordered published August 17, 2007), presents some curiously unique facts. The City of San Diego approved a resolution for the indemnification of pension board members against amounts incurred by them in actions relating to their scope of performance as board members. The board members later found themselves in need of indemnification — because of two lawsuits brought against them by the City! When their demand for indemnification under the resolution and under Government Code section 995 was refused, the members sued the city. The members prevailed on summary judgment, and the judgment entered on the motion…