If so, you might want to dust off your notes, in case Marshall University Political Science Professor Jean Edward Smith shows any prescience in his New York Times Op-Ed piece, “Stacking the Court,” which I ran across via the Wall Street Journal Law Blog. Professor Smith gives a recitation of past changes in the authorized number of justices, with very brief detail on why some of them were made, and concludes: If the current five-man majority persists in thumbing its nose at popular values, the election of a Democratic president and Congress could provide a corrective. It requires only a majority vote in both houses to add a justice or…
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- Appellate Jurisdiction, Appellate Procedure, California Court of Appeal, California Procedure, California Supreme Court, Notice of Appeal
Will the Supreme Court Revisit Clemmer v. Hartford Insurance Company?
Probably no Supreme Court opinion has been more ignored by the Courts of Appeal than Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865. In Clemmer, the Supreme Court concluded, without explanation, that an order denying a motion made pursuant to Code of Civil Procedure section 663 to vacate the judgment and enter a new judgment is not appealable and dismissed the appeal. Because it reached this conclusion without explanation, despite precedent to the contrary, and because the dismissal had no procedural effect (the issues raised were heard on appeal from the underlying judgment), this conclusion in Clemmer has been characterized as dictum and has generally not been followed. See…
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More on the Restyled Federal Rules of Civil Procedure
University of Arkansas School of Law Assistant Professor Scott Dodson has a guest post at Civil Procedure Prof Blog about the pending “restyled” Federal Rules of Civil Procedure. In addition to the article by Professor Dorf that I posted about last week, he links to a second article, in which he says the author “argues that the restyling creates more problems than solutions” and “illustrates the problems with a few key examples, including Rule 65.” Visit his post for the link. Professor Dodson is also soliciting thoughts from all comers on the restyling of the rules. So if you have any, head over there. Technorati Tags: Federal Procedure, Federal Rules…
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Procedural Maneuvering at its Finest and the Double Duty Judge
The Ninth Circuit’s decision in Vacation Village, Inc. v. Clark County, Nevada, case no. 05-16173 (July 23, 2007) delivers a “two-fer” of “bloggable” items. First, the procedural maneuvering. Landowners sued Clark County for inverse condemnation in Nevada state court. While the action was pending, the Landowners filed a voluntary Chapter 11 bankruptcy petition, listing the inverse condemnation claim as a contingent and unliquidated claim of the estate. When the Landowners advised the state court judge that they were not ready to proceed with trial, the court advised them that there were no available trial dates between then and the expiration of the five-year limitations period under state law for bringing…
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George Orwell and Legal Writing
Legal Writing Prof Blog links to an interesting article by University of Louisville Brandeis School of Law Professor Judith Fischer appearing in Montana Law Review. The abstract: This article examines George Orwell’s theories about language and applies them to contemporary legal discourse in the United States. It concludes that Orwell’s advice about the importance of clear, plain English comports with today’s accepted legal writing style. However, his warnings about deceptive language in legal and political discourse have not been well heeded. The article suggests that lawyers can assume a role in changing that. Yes, that George Orwell, author of 1984 and Animal Farm. Professor Fischer is in good company in…
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The Ninth Circuit’s Reversion to 11-Judge En Banc Panels
The Ninth Circuit reverted to 11-judge en banc panels at the beginning of this month after a brief experiment with 15-judge panels. This short article at Law.com provides some limited background on the move, including comment from one circuit judge: “It was pretty unanimous that we were not gaining anything by going from 11 to 15 judges,” said 9th Circuit Judge Diarmuid O’Scannlain, who is based in Portland, Ore. O’Scannlain, an appointee of President Ronald Reagan, said, “I would have preferred to wait until the two years were up because that is what we notified the bar we would do.” The Ninth Circuit is the only circuit that does not…
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How Not to Argue Your Case
The UCLA Moot Court Honors Program links to an audio file (less than four minutes long) of oral argument in a Seventh Circuit case that demonstrates how not to argue your case. Technorati Tags: oral advocacy
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Can a Trial Court Require Parties to Waive Appellate Review?
Howard Bashman is prompted to explore this question in his Law.com column this week because the trial court in a civil case he is handling on appeal insists that it required the parties to waive their rights to appeal as a condition of the court’s ruling on the merits of their dispute. Bashman contends the waiver never occurred, then comments on whether such a waiver would be enforceable in any event.
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End Life Tenure for Supreme Court Justices?
This post at Law.com previews a book and corresponding law review article arguing for 18-year fixed terms for U.S. Supreme Court justices. The premise seems to be that the founders could never have contemplated the long durations of most recent justices’ tenures, which arise from increases in life expectancy and retirement age. The post has lots of links and some tidbits of info about the service of Supreme Court justices.
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Writ Opinions
When nearly 92% of all original proceedings in the California Court of Appeal are dismissed without written opinion (for fiscal year 2005-2006, the latest year for which statistics are provided in the 2007 Judicial Council report), it would be nice if the Court of Appeal would, in any given case, explain why that particular case made it past summary dismissal to review on the merits. Too frequently, a writ opinion is silent on this question. I can’t offer empirical evidence, but my observation is that the Ninth Circuit addresses this issue explicitly much more consistently in its writ opinions. This is probably because its decisions usually evaluate the Bauman factors,…
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Appeals from Bifurcated Actions — and Writing about the Issue Well
In Kinney v. Overton, case no. G037146 (July 17, 2007), Justice Moore of the Fourth District Court of Appeal uses a “slay the dragon” metaphor to describe the limitations of review of judgments arising from bifurcated portions of a larger case (footnote and citations omitted): A residential subdivision in Laguna Beach is plagued with litigation involving a morass of legal issues and a plethora of parties — both public and private. The litigation was commenced by Three Arch Bay District against the City of Laguna Beach, Charles Kinney (Kinney) and numerous other parties. Kinney, a homeowner in the subdivision and a lawyer, filed a cross-complaint and a number of amended…
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FRCP Amendments Not So “Stylistic” After All?
Back on May 14th, I noted that proposed amendments to the Federal Rules of Civil Procedure had been transmitted to Congress and noted that the vast majority of changes were intended to be “stylistic” only, i.e., not making any substantive change. I provided some links to advisory committee reports and other explanatory information. But are the changes purely stylistic? Adjunct Law Prof Blog points to an article by Columbia Law Professor Michael Dorf challenging that characterization, noting that despite the intent that the changes be stylistic only, some unintended ambiguities, and corresponding substantive changes, may result. Technorati Tags: Federal Rules of Ciivl Procedure, Federal Procedure
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Stare Decisis and the “Wrongly Decided” Controlling Case
Yesterday, I posted about a mild barb at the trial court delivered by the Court of Appeal in Cuccia v. Superior Court, case no. B197278 (July 16, 2007). This post concerns the summary the Court of Appeal gave for how a California trial court should handle controlling precedent that it feels was wrongly decided. A trial court has no choice in such a situation but to follow the case. But “the trial court should make a record articulating why it believes the binding opinion is erroneous and should be revisited by the appellate court which is free to either disagree with or overrule the opinion.” The court stresses that this…
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Judges are People, Too . . .
Adjunct Law Prof Blog posted Monday about a CNN story (with link) regarding how justices on the U.S. Supreme Court take “potshots” at each other in their written opinions. Coincidentally, on the same day came Cuccia v. Superior Court, case no. B197278 (July 16, 2007), in which the Court of Appeal opens with this mild zinger directed at the trial judge: The doctrine of stare decisis requires a trial court to follow an unambiguous published holding of the Court of Appeal, even if the trial court believes that the appellate opinion was erroneously decided. This, we had assumed, was fairly obvious to every trial court judge; that is, until now.…
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Distancing Yourself from Your Briefs
Legal Writing Prof Blog points (with a link) to a law review article entitled Effective Brief Writing Despite High Volume Practice: Ten Misconceptions that Result in Bad Briefs. I won’t get a chance to read it until I return from San Diego later this week, but an excerpt from the abstract caught my eye: Many recurring brief writing errors may be caused by the demands of a high volume law practice, which allow little time for the brief writer to achieve the critical distance from the document necessary to edit and revise effectively. I’ve always considered this “distancing” a critical step, not just on appellate briefs but for any memorandum…
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Third Party Beneficiary to Contract May Invoke Attorney Fee Provision
A few days ago, in my post “Of Walnut Trees and Attorney Fees,” I took issue with the Third District Court of Appeal’s holding that a party suing on a contract that it alleges does not include an attorney fee provision is not entitled to recover attorney fees notwithstanding that the defendant alleges that additional written terms of the contract contain an attorney fee provision. Yesterday, a different panel of the Third District Court of Appeal and I agree on the attorney fee issue in Laduca v. Polyzos, case no. C050757 (July 16, 2007). The issue is whether the property owner, as a third party beneficiary of the contract between…
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Making the Record with Anger Draws Discipline
The Legal Profession Blog brings us an example of disrespect for the court that is crystal clear, unlike the “french fry” comment that caught so many people’s attention at the end of May and again last month. At the hearing on a continuance motion, a criminal defense lawyer, who had signed his papers “Indignantly submitted,” insisted that he would “jam these pleadings down the throat of the record as much as I feel I need to.” Not the recommended approach, to say the least. Check out the post at Legal Profession Blog for the consequences of this conduct.
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Posting Schedule
I will be in San Diego or in transit July 17-19 and doubt I will be accessing the blog in that time. If there’s a blog storm over some bombshell opinion between now and Friday and you’re wondering why I have nothing to say about it, it’s because I’m either driving, in my seminar, or with my wife and 5-year-old daughter watching Shamu and the other killer whales jump through hoops. You will have to content yourself with the posts I have already drafted and scheduled to publish automatically (assuming I did it right) through July 19. The California Blog of Appeal will thus have at least one new post…
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Grandstanding Does Not Equal Intent
I watched the movie Minority Report last night. It’s about a “precrime” department of the Washington, D.C. police department around 50 years in the future that, through the use of visions recorded from three gifted “precognitive” individuals, arrests persons for future murders they were going to commit. The murder rate in D.C. drops to zero. I recommend the movie, especially if you’re a sci-fi fan. Coincidentally, today the Ninth Circuit issues United States v. Jimison, case no. 06-30417 (July 16, 2007), in which Judge Kozinski frames the issue as “when a defendant can be subject to a sentencing enhancement” under U.S. Sentencing Guidelines “for possessing a firearm in connection with…
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I Hope this Judge Read the Briefs, at Least . . .
Some considerable buzz is being generated by the opinion of Second Circuit Chief Judge Jacobs in Husain v. Springer, case no. 04-5250 (July 13, 2007). The case involves a claim by a student-run college newspaper that its First Amendment rights were violated when, after the paper endorsed a slate of candidates, the college president canceled a student election on the ground that the endorsement was an improper use of student funds. On the merits, check out these posts at Decision of the Day and The Volokh Conspiracy. For commentary on Judge Jacobs’s disdain for the dispute before the court, see Appellate Law & Practice or this other post at The…
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Reduce Reversals by Splitting the Ninth Circuit?
If you’ve followed any of the debate about splitting the Ninth Circuit into two circuits, check out incoming Vanderbilt law professor Brian Fitzpatrick’s op-ed piece in the Los Angeles Times from Wednesday, in which he asserts that the Ninth Circuit’s size is partly to blame for its high reversal rate because it makes it more likely that two “extreme” judges will be assigned to the same panel: Proponents of splitting the 9th Circuit largely have been unable, however, to connect the colossal court’s size to its high rate of reversal. But there is a connection. Indeed, it can be shown mathematically that, as a court grows larger, it is increasingly…
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Go Ahead, Challenge that Arbitration Provision!
The arbitration provision of yet another giant is struck down. See this How Appealing post for relevant links and a summary of a Washington Supreme Court decision voiding Cingular’s arbitration provision in its subscriber agreement. After recent decisions in the Ninth Circuit and California’s First District Court of Appeal voiding arbitration provisions, which I blogged about here, I suspect there may be a few lawyers scattered around the West pulling late nights poring over their clients’ arbitration provisions . . . and perhaps a few plaintiffs’ lawyers tearing up their arbitration demands and drafting complaints.
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The Clerks’ Advice to Appellate Counsel
With thanks to the Second Opinions blog, here’s a brief article written by clerks to two Texas appellate justices, offering advice to appellate counsel — A View from the Cheap Seats: The Top Ten Tips For Appellate Attorneys From Law Clerks. A quick and helpful read, with advice that applies across state lines.
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2007 California Court Statistics Report Now Available
The 2007 Court Statistics Report: Statewide Caseload Trends, 1996-1997 through 2005-2006 from the Judicial Council of California is now available for download here. This 156-page report has all sorts of interesting statistics on activity in the courts. What percentage of petitions for review are granted by the Supreme Court? What percentage of writ petitions are summarily denied? What percentage of appeals result in reversal? How many traffic misdemeanor cases were filed in 2005-2006? For answers to these and other questions over the most recent 10-year period for which statistics are available, download the report.
- Appellate Procedure, Attorney Fees, California Court of Appeal, California Procedure, Post-Trial Practice, Standard of Review
Of Walnut Trees and Attorney Fees
Two interesting and “bloggable” issues are raised and decided by the Third District Court of Appeal in Brittalia Ventures v. Stuke Nursery Co., Inc., case no. C0478374 (July 10, 2007). One regards the proper standard of review when the terms of a contract are disputed. The second, and more interesting, concerns post-trial motions for attorney fees. Brittalia purchased walnut trees from Stuke and later sued for breach of warranty and other causes of action based on allegations that many of the trees were either the wrong variety or diseased. There was no single, clearly identified written contract governing the sale. The parties had a course of dealing during which they…
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When is a Probation Officer a Judge? When You Lie to Him.
Opinions from the Ninth Circuit are often summed up pretty well in the first paragraph. Yesterday’s decision in United States v. Horvath, case no. 06-30447 (July 10, 2007) is a case in point: Any person who knowingly and willfully makes a materially false statement to the federal government is subject to criminal liability under 18 U.S.C. § 1001(a). Congress chose to exempt from liability, however, false statements submitted to a judge by a party to a judicial proceding. 18 U.S.C. § 1001(b). We must decide whether the exception in § 1001(b) for “statements . . . submitted by [a] party . . . to a judge” encompasses a false statement…
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Write Like You Talk
This post from Roy Jacobsen at Writing, Clear and Simple offers some advice derived from an unlikely source: Winnie the Pooh. Jacobsen notes that too many people try to adopt a more “elevated” form of language in their writing than they use in their everyday speech. Instead, he advises that you write more like you talk, and he offers advice for evaluating your writing in these terms. Well worth a read. The use of plain language in writing is a recurring topic, (I recently linked to another blog post on the subject), no doubt because so many of us fail to heed advice in this area for more than a…
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The Problem of the Genderless Pronoun
To avert offending, writers have strived not to use “he,” “him” or “his” as a pronoun for a generic person that could be either male or female. The problem of the genderless pronoun is addresses humorously and practically in this post at Set in Style by Mister Thorne. He notes the alternative of using “it,” notes the use of the plural “they” and “their” to refer to a singular person, and rejects both practices in favor of some common sense editing.
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Amicus-Palooza
This article at Law.com discusses the unusually heavy participation of amici curiae in the pending Supreme Court case of North Coast Women’s Care Medical Group v. Superior Court (Benitez), case no. S142892. Forty organizations have filed amicus briefs, either individually or jointly. As one might expect, the issue is hot-button: were doctors within their rights to deny, on the basis of their religious beliefs, artificial insemination to a lesbian? Anyway, this got me to thinking . . . what is the record for the number of amicus briefs (or the number of amicus curiae, regardless of the number of actual briefs) in a California Supreme Court case? This case has…
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American Express Waives Arbitration through Settlement Misrepresentations
Remember that case in contracts class about whether promising to do something you were already going to do constituted consideration for a promise? The lawyers for American Express in the First District Court of Appeal case of Aviation Data, Inc. v. American Express Travel Related Services Co., Inc., case no. A111602 (July 6, 2007) apparently didn’t remember that day in contracts class. So they promised during class action settlement negotiations to implement a computer program in exchange for a release of claims . . . even though AmEx had already been using the program for two years. Then, as part of proceedings for court approval of the settlement, AmEx made…