Yesterday’s decision in Provost v. Regents of the University of California, et al., case no. G043523, offers some reminders on briefing. For those of you completely new to this, consider the sequence of briefing before you read any further: the appealing party (“appellant”) files his opening brief, the party defending against the appeal (the “respondent”) files his respondent’s brief, and then the appellant, at his option, files a reply brief. Let’s start with the appellant’s opening brief, which the court criticized for at least two deficiencies. The first was the appellant’s failure to present his arguments correctly: [S]ome of plaintiff?s arguments are not confined to the point raised in the…
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Highlights from an Evening with the Division 6 Justices
Picking up CLE credit is never as easy or fun as an evening with the justices of Division 6, which I and a few dozen other lawyers did last night at the courthouse for District 2, Division 6 in Ventura. The discussion was very informal, but there was still a lot to be learned — or in some cases, have confirmed. Much of the evening was give-and-take. I tried to take detailed notes, but I can only write so fast. So, to avoid misquoting anyone, I’ll stick to paraphrasing and, for the most part, will not attribute comments to any particular person. My intent is not to deprive anyone of…
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California Supremes keep Ninth Circuit Prop 8 appeal alive
The California Supreme Court’s much-anticipated opinion in Perry v. Brown was filed this morning. The court unanimously found that the Prop 8 proponents, who have a pending Ninth Circuit appeal from the federal district court decision finding the law unconstitutional, have standing to defend the law in court when the state attorney general refuses to do so. Answering certification of that question from the Ninth Circuit, the California Supreme Court concludes its long (61-page) decision with an unequivocal “yes”: In response to the question submitted by the Ninth Circuit, we conclude, for the reasons discussed above, that when the public officials who ordinarily defend a challenged state law or appeal…
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Bad reasons to appeal may be hiding the good one(s)
I’d love to have a nickel for every prospective client who has called me about appealing his case for the wrong reason. I don’t mean that he’s misidentified the best legal issue to raise, or even that his appeal has a very low probability of success. I mean reasons wholly apart from the merits of their case. When one of these prospects calls, he doesn’t know he wants to appeal for the wrong reason. It’s up to me to deliver the bad news, usually. You’re probably thinking that this is the part where I tell you not to call me if you’re motivated by any of these bad reasons. But the news…
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A different kind of “three strikes and you’re out”
A recent opinion from the court of appeal demonstrates that while redundancy is usually something to be avoided, sometimes it’s a good way to make a point. [Plaintiff] persistently misstates the central issue in the case by insisting, here and in related appeals, that the question presented is whether a defendant charged with trade secret misappropriation “may escape liability” by establishing that it “does not comprehend the specific information comprising the trade secrets.” This is not an issue, let alone the chief issue, in these matters. The posited question may be answered in the negative-as indeed it must-without resolving any aspect of this case. It is a smokescreen, a red…
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Real legal research on your iPhone
If you are an iPhone-using lawyer, you really should subscribe to the iPhoneJD blog, where New Orleans attorney Jeff Richardson keeps you updated not only on specific legal uses for the iPhone, but on all things iPhone. Yesterday, he reviewed Fastcase, an iPhone app for legal research, and the opening paragraph could hardly have been more glowing: I will start this review with what probably belongs in my conclusion: Every single lawyer using an iPhone should download the Fastcase app. Moreover, the availability of the free Fastcase app is a compelling reason for any attorney not using an iPhone to purchase one today. This app is that useful. The rest…
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The “underground body of law” – the influence of unpublished opinions
There’s nothing quite so frustrating as finding the perfect case — factually and legally on “all fours” with yours, with a “slam dunk” holding — that has been depublished (or was never published). California Rules of Court, rule 8.1115(a), prohibits citation to opinions “not certified for publication or ordered published.” That “perfect” case might as well not exist if it’s not published. Well, not quite. Such cases can be well worth finding because, in the absence of published cases, they can still be quite helpful in formulating argument and working logically through the issues. It is such influence in the absence of publication that leads presiding justice Kline, dissenting in…
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Supreme Court denies review in Burlage v. Superior Court
Image via Wikipedia The Supreme Court denied review today in Burlage v. Superior Court, leaving intact the decision that, by speculation of some (including yours truly), will increase the number of legal challenges to arbitration decisions. I won’t go so far as to say that it will “open the floodgates,” but it certainly opens an avenue to judicial review that many would not have tried before the decision was published. Expect to see many challenges that assert, though not in so many words, that the legal error that occurred in their case is grounds for vacating an award if the error led the arbitrator to exclude evidence. The challenge for…
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Judicial Council meeting this week to discuss impact of court closures
A Friday afternoon press release (PDF) from the Administrative Office of the Courts announced that this Wednesday’s meeting of the Judicial Council will include a review of the impact of the court closure policy instituted last September. From the agenda: Based on survey responses from the Supreme Court, Courts of Appeal, 54 superior courts, and 275 justice system partners, the Administrative Office of the Courts (AOC) recommends continuing the one-day-per-month judicial branch closures through June 2010, as directed at the July 29, 2009, Judicial Council meeting. The closures provide a viable method in the short term to absorb the significant budget reductions imposed on the branch, although they are far from…
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Citations of the future
Duke University professor Joan A. Magat has an article up at SSRN suggesting changes in footnote use in academic legal writing, but the future she predicts for legal journals in “Bottom Heavy: Legal Footnotes” may be the future of all legal authority: No more paper: just electronic journals with links to sources. That’s what’s ahead. All this current, Bluebook-inspired preoccupation with small caps and spacing initials and the like will go the way of the mastodon. One of these days, we’ll have just URLs. They’ll have to be correct, or they won’t work. And they’ll have to last. If you’re an academic writer, you should check out the article. Here’s…
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Ineffective assistance of counsel in advising waiver of right to claim ineffective assistance of counsel
When a plea agreement includes a waiver of rights to appeal, claim ineffective assistance of counsel, and to move to withdraw the plea, can it logically be enforced to preclude a claim of ineffective assistance of counsel in the advice to enter into the agreement? Last week, in People v. Orozco, case no. F056712, (5th Dist. Ja. 8, 2010), the court of appeal joins several federal courts in reaching the only sensible answer: of course not. To hold such a waiver enforceable “would deprive a defendant of the ‘opportunity to assert his Sixth Amendment right to counsel where he had accepted the waiver in reliance on delinquent representation.’ ” [Citation.] We agree…
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“Octa-Mom” wins one in court
“Octa-mom” Nadya Suleman became an object of derision when, after fertility-treatment-induced birth to octuplets, people learned she was a cash-strapped single mother who already had six children at home. But it’s her adversary that comes into ridicule in Friday’s decision in Suleman v. Superior Court , case no. G042509 (4th Dist. Jan. 8, 2010). Paul Peterson filed a petition to appoint a guardian to handle financial affairs for the octuplets. (Peterson asserted that his non-profit organization wanted to ensure that financial compensation received from photos or video of the octuplets was preserved for their majority, which explains why no guardianship was sought for the remaining children.) Suleman moved to dismiss,…
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New, and hopefully improved, design
Regular readers will note the blog’s new design, which debuts today. When I started my new blog, The Ninth Circuit Blog of Appeals, I utilized a customizable theme that emphasizes search engine optimization. I’ve switched over to the same theme here for the SEO benefits and in order to make the designs of the two blogs similar enough to suggest a relationship. I still have lots of touch-up work to do, but I decided it was better to reopen the blog to access today as scheduled rather than spend another day or two tinkering without substantive updates. So, please bear with me as I clean up around here over the…
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Video coverage of Prop 8 trial enjoined, at least temporarily
I have a post up at The Ninth Circuit Blog of Appeals on the latest development in the ongoing battle over video coverage of the Prop 8 trial.
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Don’t jump to conclusions on the standard of review
“This is one of those cases where some exposition on the topic of the standard of review is necessary to sort out the case.” When a court begins its analysis with that sentence, as the court in Le v. Pham, case no. G041473 (4th Dist. Jan. 6, 2010) did yesterday, you know the opinion is going to be an interesting read — if you’re an appellate attorney, anyway. Le is a great study in why it is important to think carefully about the appropriate standard of review. Respondents, who had prevailed against a cross-complaint against them, probably thought they had this case in the bag, but because the standard of…
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Now in session: The Ninth Circuit Blog of Appeals!
Just before Christmas, I announced that this blog would be spinning off a new blog, The Ninth Circuit Blog of Appeals, with the start of the new year. I’m pleased to announce that The Ninth Circuit Blog of Appeals is now in session. This is the follow-up post I promised about how I reached the decision to split this blog and my plans for managing both of them. First, an explanation as to why I am resuming blogging on a more regular basis. As regular readers recall, my blogging frequency dropped off dramatically in 2009. I posted from time to time, but not with the regularity and enthusiasm with which I…
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Felony-misdemeanor preemption analysis yields odd result
Most of the time, lawyers encounter preemption issues in the context of conflicts between federal and state law or between local and state law. But horizontal preemption is also possible. Even different criminal statutes in the same state can trigger preemption issues, as in People v. Murphy, case no. E046742 ( 4th Dist. Dec. 28, 2009): Defendant contends the Legislature enacted misdemeanor statutes, which more specifically defined the felony offense for which she was convicted in count 1, subsequent to the latter’s enactment; thus, she asserts her felony conviction is preempted and must be reversed. Specifically, the defendant contended that her conviction for procuring or offering false information for filing in a pubic office…
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When the Attorney General agrees with you
Respondents sometimes must concede minor points along the way while arguing that such points do not require reversal. But seldom does one see the respondent agree that a judgment is even partially reversible. One is more likely to see it in a criminal appeal than in a civil appeal, especially when the criminal appeal involves errors in sentencing, as in People v. Frausto, case no. B212054 (2d Dist. Dec. 28, 2009), where the attorney general agreed that the trial court erred in imposing three cumulative 5-year sentencing enhancements under Penal Code section 667, subdivision (a)(1) for each of three prior serious felony convictions tried in a single proceeding and that…
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Reminder: Supreme Court’s Los Angeles office closes for good today
Today is the last day of operation for The California Supreme Court’s Los Angeles clerk’s office, which is closing for budgetary reasons. The press release announcing the closure states that the Supreme Court will continue to schedule oral arguments in Los Angeles, but litigants must now file all documents at the court’s San Francisco clerk’s office.
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Unlike the Ninth Circuit, this blog is soon to be split in two
And just how, you might be wondering, is a blog with a single blogger going to split up? Since this blog’s inception, I have covered case law and issues in the Ninth Circuit as well as California state court. Based on responses to the blog, however, it appears few people arrive by looking for federal information. Am I missing out on readers — and maybe even business — by having coverage of federal issues buried in a blog called The California Blog of Appeal? Well, I’m going to try to find out. Starting January 1, 2010, your humble blogger is going to be pulling double blog duty, covering case law…
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SCOTUS holds discovery ruling requiring disclosure of privileged information is not appealable
Richard Westfall at Rocky Mountain Appellate Blog wrote up the first SCOTUS opinion authored by Justice Sotomayor, Mohawk Industries, Inc. v. Carpenter, in which the unanimous court (with a separate concurrence from Justice Thomas) holds that a discovery order is not immediately appealable under the “collateral order doctrine.” Westfall summarized the case: In Mohawk, the district court ordered Mohawk to turn over documents Mohawk asserted were protected by the attorney-client privilege. The collateral-order doctrine allows for immediate appeals if: (1) the particular ruling conclusively determines the disputed question; (2) resolves an important issue separate from the merits of the action; and (3) is effectively unreviewable on appeal from a final…
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Google Scholar’s legal database
Image via Wikipedia I’m a little late on this . . . OK, I’m a lot late. Last month, Google announced a searchable database of case law and legal journals on Google Scholar: Starting today, we’re enabling people everywhere to find and read full text legal opinions from U.S. federal and state district, appellate and supreme courts using Google Scholar. You can find these opinions by searching for cases (like Planned Parenthood v. Casey), or by topics (like desegregation) or other queries that you are interested in. For example, go to Google Scholar, click on the “Legal opinions and journals” radio button, and try the query separate but equal. Your…
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Make the record easy on the eyes, please
I was updating my blogroll and checking up on some of those links in preparation for a re-vamp of this site and a new blog project (more about that tomorrow), and I ran across a year-old post at Criminal Appeal I couldn’t agree with more, which starts: Dear Court Reporters, Having finished reading another all-capitalized reporter’s transcript it’s time to again implore you to remember that the proper use of capitalization is not simply a matter of style, but it is more a convention designed to assist the reader and prevent headaches. Capitalization helps the reader find the beginning of the sentence. Lower case letters are easier to discriminate from…
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Lights! Camera! Call your first witness! Ninth Circuit opens up district courts to cameras.
The Judicial Council of the Ninth Circuit issued a press release yesterday (PDF) announcing a pilot program allowing use of cameras in district court courtrooms. The release included this comment from Chief Judge Alex Kozinski: “We hope that being able to see and hear what transpires in the courtroom will lead to a better public understanding of our judicial processes and enhanced confidence in the rule of law. The experiment is designed to help us find the right balance between the public’s right to access to the courts and the parties’ right to a fair and dignified proceeding,” Judge Kozinski said. I’ve heard heavy criticism of the use of cameras…
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Arbitration challenges get a big boost — but maybe not for long
If you’re a litigation or appellate lawyer, you’ve probably already read about Burlage v. Superior Court, case no. B211431 (2d Dist. Oct. 20, 2009 [opinion after rehearing]), and you’re probably not surprised to learn that the petitioners filed their petition for review in the California Supreme Court yesterday. The case had petition for review written all over it: a contentious area of the law (arbitration), a split decision, amicus involvement, lots of attention in the legal community, and heavy-hitter appellate counsel (full disclosure: I know and have worked with one of the attorneys, Ventura appellate ace Wendy Lascher, who represents the Burlages). Other bloggers have reported the case in detail…
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En banc ninth tries to clear up the “abuse of discretion” standard
The “abuse of discretion” standard of review, depending on the particular court applying it and the particular case in which it is applied, can sometimes seem about as clear as mud. The en banc Ninth Circuit set out to clear up the standard in United States v. Hinkson, case no. 05-30303 (9th Cir. Nov. 5, 2009): Today we consider the familiar “abuse of discretion” standard and how it limits our power as an appellate court to substitute our view of the facts, and the application of those facts to law, for that of the district court. *** [W]e conclude that our “abuse of discretion” standard is in need of clarification.…
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Big city justices roll into Napa
The First District Court of Appeal convened yesterday in Napa to hear two criminal cases at a public auditorium before about 400 high school students. The justices also treated the students to a Q&A session. Given that most people’s exposure to the law through the entertainment media nearly always involves a trial, this session strikes me as an excellent opportunity to educate the public about appeals. After all that exposure to movie-version trials, one suspects that the typical student, unless adequately briefed on the proceedings beforehand, would walk away from an appellate hearing saying to himself, “That’s it?” I’m curious whether that sentiment came out during the Q&A or in…
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Well, just the impetus I needed!
If you are a regular reader, you know I’ve been AWOL for several months. What started as a short break turned into a hiatus, without so much as an announcement from me. Work and family issues made for such a hugely busy few months. For the past few weeks, I’ve been considering how to get started blogging again. I’ve been mulling a change in focus of the blog, design changes, perhaps starting another one. Something I could do to rekindle my blogging spirit and herald my return to the keyboard. Then, today I was thinking, “No. Forget about grand announcements. Forget about design changes. Forget about a shift in focus.…
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Supreme Court announces court closure schedule
The California Supreme Court has announced the statewide court closure schedule made necessary, according to the announcement, by “California’s current fiscal crisis.” “The Supreme Court of California, the Courts of Appeal, and all superior courts will be closed on the third Wednesday of each month, starting September 16, 2009”. Those of you who prefer not to risk miscounting your Wednesdays can find a list of closure dates through June 2010 on the Supreme Court’s home page. In case that list is no longer there when you look, Kimberly Kralowek has posted the same chart at The UCL Practitioner.
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Review of Remand Orders: One Man’s Obsession
And I mean obsession in a good way. I never thought I’d get out-geeked on the subject of jurisdiction, and especially not on the subject of appellate jurisdiction, but I think Jones Day partner Mark Herrmann pulled it off today at his Drug & Device Law blog. In a long joint post there regarding when an appellate court may review an order remanding a case back to the state court from which it was removed, Herrmann and his blog partner Jim Beck of Dechert LLP not only chronicle the history of Supreme Court jurisprudence in this area and propose sensible reform, they start their discussion by citing Herrmann’s 22-year-old law review article on the…