I’ve been blogging less than two months, and one of the things I am still getting used to is that the need to post quickly about current developments or about my comments on other blogs forces me to post without subjecting my writing to the same rigorous editing I apply to my writing in almost every other context. Which means I’m probably posting work that’s not up to my usual standards. Which, come to think of it, makes it very dangerous for me to keep blogging about writing skills, doesn’t it? Too late now. I’ve already posted twenty-one times on the subject of writing!
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Your Eraser is Your Friend
Kenneth W. Davis at Manage Your Writing has this post encouraging writers to use their erasers more. Davis explains that because of the time and effort we put into our writing, it is often difficult for us to acknolwedge that our writing would benefit from being trimmed. He bets that once you take his challenge to erase just three words from everything we write, you won’t be able to stop. His post also generated a link from a post at Writing, Clear and Simple, that I think has quite a clever title: “To sharpen your writing, use your eraser.“
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California Supremes on the Right to Rehearing on Unbriefed Issues
When is a party entitled to a rehearing from the Court of Appeal? One such case — where the decision is based on an issue the parties did not have an opportunity to brief — is codified at Government Code section 68081: Before the Supreme Court, a court of appeal, or the appellate division of a superior court renders a decision in a proceeding other than a summary denial of a petition for an extraordinary writ, based upon an issue which was not proposed or briefed by any party to the proceeding, the court shall afford the parties an opportunity to present their views on the matter through supplemental briefing. …
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New Judicial Council Forms Effective July 1, 2007
New and revised Judicial Council forms became effective on July 1, 2007. The list of new and revised forms is here. All of the Judicial Council forms are available for download here.
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Jones Day’s Low-Profile Roots?
OK, this is off-topic for this blog (I had to create the new “Law Practice & Marketing” category for it), but it concerns one of my old firms — my first firm — and I can’t help commenting. Jones Day was my first law firm out of law school in 1992. I was in their 90-lawyer L.A. Office. It turned out that “big firm” life wasn’t for me, and I left after two years, but there were many fine people and lawyers there. Which made it both amusing and distressing for me to learn from Carolyn Elefant at law.com about an article in Cleveland Scene titled “Deception HQ: Jones Day,…
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Raiders Lose on Independent Review of Order Granting New Trial
Congratulations! The court has granted your motion for a new trial! Now, just pray the trial judge doesn’t screw it up. Yesterday’s Supreme Court opinion in The Oakland Raiders v. National Football League, case no. S132814 (July 2, 2007) demonstrates again that no winner of a new trial can have confidence in the order granting the new trial unless the court specifies its reasons in the order or files its specification of reasons within 10 days of the order, as required by Code of Civil Procedure section 657. In this case, the court’s failure to specify its reasons results in a different standard of review on appeal that effectively shifts…
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An Arbitrator with Chutzpah
It takes some cheek for an arbitrator to reform a collective bargaining memorandum of understanding (“MOU”) between a state agency and an employee bargaining unit when the MOU has already been approved by the legislature pursuant to the Dills Act. And its reversible error, of course. In Dept. of Personnel Administration v. Calif. Correctional Peace Officers Assn., case no. C051636 (June 29, 2007), the Third District Court of Appeal affirms the trial court’s order vacating the arbitration award. Such employment agreements must be submitted to and approved by the legislature. By reforming the agreement to conform to her findings regarding the parties’ intent, thus changing the provisions approved by the…
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Discounted Third Party Purchase of Medical Account Doesn’t “Hanif-y” Plaintiff’s Recovery
Mention Hanif v. Housing Authority (1988) 200 Cal.App.3d 635 to a personal injury lawyer, and he’ll likely bristle. Hanif, along with Nishihama v. City and County of San Francisco (2001) 93 Cal.App.4th 298, held that an injured tort plaintiff may recover only the amount of medical expenses he or she paid or incurred, even if the reasonable value of those services is much higher. Thus, a medical provider who writes down the bill or accepts a lesser amount from an insurer as payment in full effectively reduces the potential recovery of the plaintiff. Should the same rule apply if the medical provider sells the plaintiff’s account (including a lien against…
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Waiving Issues in Arbitration
Keep a close watch on those arbitration arguments, especially as they relate to the scope of the arbitrator’s power as defined by the arbitration agreement. That’s the lesson of J.C. Gury Co. v. Nippon Carbide Industries (USA) Inc., case no. B194926 (June 29, 2007), in which the Second District Court of Appeal holds that Nippon waived the contractual limitation on the power of the arbitrator by its conduct during the arbitration, and thus may not petition to vacate the award on the ground the arbitrator exceeded his powers. The agreement stated that the arbitrator “shall not have the power to change, alter or modify” any term of the parties’ agreement. …
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Ninth Circuit Rules Amendments Available
Amendments to the Ninth Circuit rules went into effect on July 1, 2007. They are available for download as a PDF from the Ninth Circuit Court of Appeals website. It’s a handy file, with a chart of the changes and revised or added language clearly highlighted.
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Snap Shots are Back
Introducing Snap Shots from Snap.com I just installed a nice little tool on this site called Snap Shots that enhances links with visual previews of the destination site, interactive excerpts of Wikipedia articles, MySpace profiles, IMDb profiles and Amazon products, display inline videos, RSS, MP3s, photos, stock charts and more. Sometimes Snap Shots bring you the information you need, without your having to leave the site, while other times it lets you “look ahead,” before deciding if you want to follow a link or not. Readers of this blog at its original WordPress host will remember that this feature disappeared when I moved to my own host on June 11.…
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Confusing Jurisdiction with Forum Selection
It’s common to see forum selection clauses in contracts. It’s also common to see such clauses purport to limit “jurisdiction” to the courts of a given state or even a specific county within the state. Nice try. No matter the skill of the lawyers, parties simply cannot strip a court of subject matter jurisdiction by private agreement, as we are reminded by the Third District Court of Appeal in Miller-Leigh, LLC v. Henson, case no. C051652 (June 28, 2007). The parties to a lease guaranty for leased property in Arizona included a provision stating that the guaranty was governed by Arizona law and that “Arizona is the proper jurisdiction for…
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“. . . up with which I will not put.”
That’s the end of a sentence allegedly uttered by Winston Churchill to demonstrate the absurdity of a grammar “rule” we’ve all heard. There are several variations attributed to Churchill, but the one I like best is at Thinkexist.com: “The rule which forbids ending a sentence with a preposition is the kind of nonsense up with which I will not put.” Professor Wayne Scheiss refers to this as a “mythical rule” and has a good post about it at legalwriting.net, which demonstrates how you can improve your writing by ignoring the rule. I confess I did not know this rule was mythical (I had it drilled into me by my high…
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Follow-Up to “A Conundrum on Federal Court Determinations of State Law Issues”
In this post last week, I noted that Howard Bashman (of the How Appealing blog) and I had nearly simultaneously (and quite independently) come up with similar questions on federal court determinations of state law. I had pondered the question as a “hypo” for my legal research students; Bashman asked it in the context of a recent Third Circuit opinion, Jaworowski v. Ciasulli, case no. 05-1423 (June 18, 2007), in which the district court had followed a 19-year-old Third Circuit decision predicting how the state’s high court would decide the state law question. On appeal, the Third Circuit reconsidered the state law question and decided that the state’s highest court…
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Law School Rankings
There’s a lot of talk out there right now about law school rankings. I heard on the radio the other day that some liberal arts schools were boycotting the magazine rankings and that some law schools were considering doing the same. The Law School Innovation blog has a post rounding up some recent articles about rankings, including a Wall Street Journal article about blogs ranking law schools, a WSJ blog post about alternative rankings systems (which includes lots of links), and a National Law Journal article predicting that the liberal arts school boycott is not likely to spread to the law schools. Professor Rubinstein at Adjunct Law Prof Blog has…
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The Last Law Professor without a Blog?
University of Colorado Law School Professor Paul Campos had a piece in our local paper yesterday morning in which he thought out loud about starting a blog. Confessing that he is “attracted to the prospect of being the last law professor in America without one,” he gives a tongue-in-cheek pro vs. con analysis about starting one. Among writers in general, and bloggers in particular, alcohol and narcissism go together like peanut butter and chocolate. Psychologists define narcissistic personality disorder as involving a grandiose sense of self-importance, and an overwhelming need for the constant attention and admiration. What better example of this can there be than bloggers obsessed with how many…
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Some Small Changes
Regular readers will note some small changes to the post and commenting formats. First, the comment form now includes a field for your URL. If you fill out this field with the URL of your own blog, then a recent snippet from your blog will appear immediately below your comment. For an example, check the comment I have added to this post. In effect, you’re advertising on my blog. This service is by way of a plug-in called “Blogfollow,” and the Blogfollow badge appears below each post and on the comment page (which may be overkill — I’ll probably take it out of the position below each post). Hovering over…
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Great Lawyers Can Write Unenforceable Arbitration Agreements
I’m beginning to wonder if writing the perfect arbitration provision is something like understanding the rule against perpetuities. You all remember that case from torts class, don’t you? The court holds that an attorney can’t be liable for malpractice related to the rule against perpetuities because no one understands the rule against perpetuities. Hence, the attorney could not have violated the standard of care. A little over a month ago, the Ninth Circuit ruled in Davis v. O’Melveny & Myers, case no. 04-56039 (9th Cir. May 14, 2007) that the arbitration provision in the employment contract of a prominent, powerful L.A.-based law firm was unenforceable. Not just unenforceable, but “shock…
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Exclusionary Rule Beats the Criminal Rap — but not the Administrative One
A driver driving his own car is pulled over by a police officer who, because of outdated police records, believes the car is stolen. While detaining the driver during the check on the ownership of the vehicle, the officer notes signs of drinking and the driver admits to having been drinking. He is arrested and later blows a 0.12 breathalyzer. In his criminal prosecution, he moves to suppress all evidence obtained or seized in connection with the traffic stop. Easy call. Case dismissed. When the DMV holds an administrative review of his driving privileges, the driver makes the same motion. Denied, and driver’s license is suspended for a year. The…
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My Eyes Weren’t Deceiving Me After All
So there I am, browsing the names of the opinions published yesterday, when I see it. Can’t be right, I think. I rub my eyes, look again. Still there. So I access the actual opinion, thinking that the name listing must be the result of some technical glitch. Nope. The names of the parties are on the opinion plain as day in NMSBPCSLDHB v. County of Fresno, case no. F050094 (June 26, 2007). So I wonder whether the plaintiff is an “artist formerly known as” something else. I’m so curious that I run a party name search in the Fifth District Court of Appeal and turn up several related cases…
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Legal Antics Announces Legal Humor Law Blog Poll Winners
That was fast. Legal Antics announced the winners in its “Top 10 Funniest Law Blogs” contest that it announced less than two weeks ago. Sixteen blogs were nominated. In order to generate traffic to Legal Antics, I’m not going to disclose the winning blog here. (A link to the post disclosing the winners is below the teaser quote.) Here’s the teaser: [Winner], a web site that, upon information and belief, doesn’t even consider itself a blog, let alone a law blog, has won the “Funniest Law Blog” contest by a landslide. Go here for the complete results. By the way, all of the sixteen nominated blogs that weren’t already on…
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Teaching Legal Writing to Lawyers
I don’t teach legal writing to lawyers. But Professor Wayne Scheiss apparently does, and has some amusing thoughts on it. I agree with his observations about the typical class participants (for the most part), but I disagree with his contention that it’s a dry subject.
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Unitherm Precludes Plain Error Review, Too
Watch rule 50 of the Federal Rules of Civil Procedure! In Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc. (2006) 546 U.S. 394, the Supreme Court held that a party who fails to renew a Rule 50(a) pre-verdict motion for judgment as a matter of law by moving under Rule 50(b) post-verdict waives any review of the sufficiency of the evidence. Prior to Unitherm, an appellant in the Ninth Circuit likewise waived sufficiency of the evidence review in such circumstances, but the Court of Appeals could review for plain error on the face of the record that would result in a “manifest miscarriage of justice” if not corrected See Patel v.…
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Another Example of Judicial Writing I’d Like to Try
Boy, how I’ve been tempted at times to write something like this. But judges can get away with things in opinions that lawyers dare not put in briefs. From the Seventh Circuit’s Judge Posner: The complaint is a hideous sprawling mess, 40 pages in length with 221 paragraphs of allegations. We have found it difficult and in many instances impossible to ascertain the nature of the charges. . . . [T]he defendants can hardly be blamed for wanting to strangle the monster in its crib. The case is In re Ocwen Loan Servicing, LLC Mortgage Servicing Litigation, case no. 06-3132 (7th Cir., June 22, 2007). Thanks to Legal Writing Prof…
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The Doctrine of Implied Findings is Serious Business
Under the doctrine of implied findings, the Court of Appeal will presume that the trial court made all findings necessary to support the judgment. The only way for the appellant to avoid that presumption is to request a statement of decision pursuant to Code of Civil Procedure section 632, and then to object, pursuant to Code of Civil Procedure section 634 (either by objection prior to entry of judgment or by statutory motion for new trial or motion to vacate the judgment), to any statement that omits necessary findings or contains ambiguous findings. There is a lot that can be written about this process, but this post is limited to…
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Long Words Don’t Make You Look Smart
In fact, if the study referenced by this post at Manage Your Writing is to be believed, they actually make you look less intelligent than when you use shorter words. Suppose I titled this post, “Utilization of Protracted Vocables Gives the Impression that You are Unintelligent.” Would your first impression of this post have been different? Thanks to Legal Writing Prof Blog for the link.
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Legal Humor Blogs Added to Blogroll
Check the left sidebar for the Legal Humor blogroll I promised a few days ago. Since Legal Antics’ “top ten” nominations are still being accepted, there should be quite a few to add here later.
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French Fry Follow-Up
Thanks to Carolyn Elefant of My Shingle.com for this post at Law.com Legal Blog Watch pointing out this article on the disposition of the OSC against the lawyer who told a judge she was “a few French fries short of a Happy Meal,” an event I first blogged about here. It didn’t turn out nearly as badly for the lawyer as the original OSC suggested it might. Perhaps the judge issued the OSC in a fit of pique and had a chance to calm down before the hearing. Maybe she saw some of the blogger comments, like those here or here. Above the Law had several posts following the progress…
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A Trip Down a “Dark Corridor”
In Linear Technology Corp v. Applied Materials, Inc., case no. H028343 (June 18, 2007), the Sixth District Court of Appeal offers a primer on determining whether a case is one “arising under any Act of Congress relating to patents” within the meaning of that language in Title 28 United States Code section 1338(a). Linear purchased equipment from the three defendants and was sued for patent infringement by a third party, with whom it settled. Linear alleged its use of the equipment led to the patent infringement suit and sought indemnity from the sellers by suing them in state court on multiple causes of action. The superior court dismissed the case…
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A Conundrum on Federal Court Determinations of State Law Issues
In my legal research class, I recently went over the general principle for how a federal court sitting in diversity should determine state law issues. The federal court looks first to see if the issue has been decided by the applicable state court of last resort. In the absence of an opinion from the state court of last resort, it must predict how that court would decide the issue based on input that would be considered by that court. I came up with a “hypo” for my students: You are a federal district judge presiding over a diversity case. You are presented with a question of state law on which…