Here’s an article on my short list of must-reads: in Know Your Client: Maximizing Advocacy by Incorporating Client-Centered Principles into Legal Writing Rhetoric Practice, Rutgers-Camden law professor Jason Cohen advocates that lawyers look beyond the typical “write for your audience” mindset and incorporate the client’s values into their legal writing. From the abstract: Clinicians, however, have developed theories of client-centered lawyering which require that the attorney uncover their client’s values, goals and objectives that may go well beyond the discrete litigation at hand. Client-centeredness encourages the attorney to incorporate this information into his/her advocacy on behalf of their client. This article advocates incorporating select principles from client-centered lawyering into legal writing. The…
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A civil case and a criminal case look the same to a mailbox
For an appellant whose mail slot looks like the one pictured, there was an important decision yesterday. The California Supreme Court reached a sensible decision in Silverbrand v. County of Los Angeles, case no. S143929 (Apr. 23, 2009), in which the court holds that a prisoner’s pro se notice of appeal in a civil case is timely filed upon deposit with prison authorities for mailing. This brings the rule for timely filing of an appeal by a pro se prisoner in a civil case in line with the rule for a pro se prisoner’s filing of an appeal in a criminal case. Silverbrand’s medical malpractice action against the county and…
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Service of Summons via Social Media
Sometimes, a defendant manages to dodge service of summons quite skillfully. A colleague of mine once resorted to serving a defendant with summons at the defendant’s daughter’s wedding because the defendant had successfully dodged many prior service attempts. Now, an Australian court has authorized service of summons by notifying the defendant via Facebook (sidebar note at p. 10 of this PDF). And why not? If it hasn’t already happened here, it probably will eventually. California law (Code Civ. Proc., § 415.50) already allows for service of summons by publication in newspapers in certain cases when a plaintiff shows that “the party to be served cannot with reasonable diligence be served in another…
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Judge Bea calls out his colleagues
In a dissent from a Ninth Circuit denial of en banc review in Lopez-Rodriguez v. Holder, case no. 06-70868 (9th Cir. Aug. 7, 2008, r’hng en banc denied March 27, 2009), a case concerning the application of the exclusionary rule to civil deportation proceedings, Judge Bea authors an opinion that puts his view of the panel decision — specifically,the reasoning by which the panel reached its decision — rather bluntly. In [INS v. Lopez-]Mendoza [, 468 U.S. 1032 (1984)], the Supreme Court clearly held the exclusionary rule does not apply to bar illegally procured evidence from admission in a deportation hearing. Mendoza, 468 U.S. at 1050 (holding that the “balance between costs and benefits comes out against…
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Another Supreme Court Justice Meet-Up at Pepperdine
After hosting Justice Alito and Justice Scalia, Pepperdine recently hosted an event with Justice O’Connor. Read appellate attorney Ben Shatz’s account of the Justice O’Connor event at the Los Angeles County Bar Association blog, en banc, where you can also find his previous posts on the Justice Alito and Justice Scalia events.
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Manufacturing appellate jurisdiction over a discovery ruling
When I read Brescia v. Angelin, case no. B204003 (2d Dist. Mar. 17, 2009), I was reminded about how Saturday Night Live once ran one a commercial parody for a product with the advertising slogan “It’s a dessert topping! It’s a floor wax! It’s two products in one!” How do I make that connection? Because when I was done reading the case, I thought, “It’s a dismissal after sustaining a demurrer! It’s a discovery ruling! It’s two rulings in one!” And so did the court of appeal, though it didn’t say it in so many words. Brescia cross-complained against respondents for trade secret misappropriation. Code of Civil Procedure section 2019.210 requires a…
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In re B.S.
I know the title of this post implies that you’re about to read some complaint about an illogical decision. After all, I doubt there’s a litigator alive who hasn’t received an adverse ruling or verdict and thought, “What a load of B.S.!” (By the way, if you ever do feel that way, it’s time to call me.) And that’s the way I was going to write this post, until I looked at the substance of the decision and got hooked, as I usually do, by a jurisdictional question. In re B.S., case no. E045748 (4th Dist. Mar. 17, 2009) is a case of alleged jurisdictional conflict between two divisions of a superior…
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Looks Like I was Wrong about Tweeting Jurors.
I didn’t think we’d see them anytime soon. I was very, very wrong. UPDATE: So I got to thinking . . . I’ve got 20 or 30 years left in my legal career. Will I see a juror’s mental telepathy about a case raised as a ground for appeal? I don’t know, but if mental telepathy is possible, it will sure change oral argument, especially how an advocate handles questions from the court.
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Scalia and Starr at Pepperdine
Too late, you’ve missed it. But if you want to read all about the “conversation” between Dean Kenneth Starr and Justice Antonin Scalia held at Pepperdine yesterday, check out the very detailed write-up of the event by appellate attorney Ben Shatz at En Banc. Consider Ben the Pepperdine bureau chief, as he also had a good write-up last August on Justice Samuel Alito’s appearance there.
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Trial by Tweet
More accurately, I guess, trial coverage by tweet. A reporter as been given permission by a federal judge in Kansas to pubish updates from the courtroom via Twitter. A few of his dispatches by tweet: — “Judge Marten is talking to reluctant witness in chambers with a court reporter transcribing the conversation.” — “The witness who was yelling in the hallway earlier has not returned to the courthouse.” — “Defendants are chatting and laughing among themselves.” — “Exhibits are shown electronically. Every juror has a monitor in the box. There is a monitor at each lawyer’s table and one for the gallery.” It won’t be long before journalism schools offer…
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Your RSS feed reader is not malfunctioning
That’s right, this really is a new post. I didn’t plan to go for more than a month without posting — the longest time I’ve ever had between posts without first announcing a hiatus — but events got the best of me. Which is OK. Between clients and the blog, it’s not a close call. I do plan to get a substantive post up this week and get back on a regular posting schedule soon. Just wanted you all to know the blog has not been abandoned. As a welcome back treat, allow me to share a couple of blawg items I found interestting. First, I just ran across a…
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The “Poof” Principle
I don’t know if they coined the phrase — kudos to whoever did — but “the ‘poof principle” is the phrase the guys at California Attorney Fees use to sum up one aspect of Sanai v. Saltz, case nos. B198217 & B202787 (2d Dist. Jan. 26, 2009). What better phrase to apply to a case where the defendant sees a million dollar attorney fee award evaporate because the underlying judgment is reversed?
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A Published Supersedeas Case. Really!
From my lips to the Court of Appeal’s ears . . . or maybe from my keyboard to the Court of Appeal’s monitors . . . barely a week after I lamented how old most of the published case law is regarding supersedeas and other stays on appeal, along comes Veyna v. Orange County Nursery, Inc., case no. G041305 (4th Dist. Jan. 15, 2009), a published decision denying a petition for writ of supersedeas. Published opinions on this topic rarely come along, so we might as well grab all the gusto we can from it. First, a synopsis of the facts, then a couple of lessons to take away from…
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Supremes Grant Cert in Teen Student Strip Search Case
Remember all the blog coverage (and not just here) about school officials’ strip search of a 13-year-old Arizona student in a “zero-tolerance” motivated quest for that dreaded scourge, Ibuprofen? I covered the original decision upholding the search here, noted the grant of rehearing here, and the en banc reversal here. Here’s the en banc opinion: Redding v. Safford USD #1, case no. 05-15759 (9th Cir. (en banc) July 11, 2008). SCOTUS granted cert Friday afternoon, so there is sure to be another burst of blog coverage about the case. If you want to get up to speed while saving yourself some clicks, go straight to this synopsis by newly minted…
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Can Bad Legal Writing Get You in Trouble?
You bet it can, and your boss isn’t the only one who can create trouble for you. To see what other kinds of trouble you can get into, and how to avoid it, check out this oldie but goodie (but just recently posted to SSRN), Ethical Legal Writing, from UT law professor Wayne Schiess of Legalwriting.net and its blog. The abstract: “This article describes real cases in which lawyers got into trouble for poor legal writing: court sanctions, fines, bar discipline, civil liability, and public humiliation. It offers advice for avoid [sic] those fates.”
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Dominance and Submission at the Appellate Court?
But of course! Not of the leather, whips and chains variety, though. “Dominance and submission” at appellate oral argument is one of the areas taken up by UNLV law professor Michael Higdon in his forthcoming Kansas Law Review article, available now at SSRN: Oral Argument and Impression Management: Harnessing the Power of Nonverbal Persuasion for a Judicial Audience. From the abstract: As you will see in the article, nonverbal communication goes well beyond simple hand gestures, but also encompasses how a person speaks, how a person dresses, a person’s facial expressivity, and even such things as a person’s posture and head position. Furthermore, social science research reveals that both these…
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“There is no exception for Supreme Court cases of ancient vintage.”
That’s from Mehr v. Superior Court (1983) 139 Cal.App.3d 1044, 1049 fn. 3, regarding the doctrine of stare decisis. It’s a handy quote to keep in your arsenal for those occasions when you have to cite very old cases. I can remember legal research and writing instructors pounding into our heads that we should always use newer cases, where available. Thus, while I’ve never seen anyone try to discount a case based on its age alone, there’s that uneasy feeling any time I find it necessary to cite an old case that the adverse party will try to do just that. A smart lawyer, of course, would not rely on…
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Who Says CRC 8.108(f)(1) is for Cross-Appeals Only?
Certainly not Division Three of the Fourth District Court of Appeal. In The Termo Co. v. Luther, case no. G038435 (Dec. 17, 2008), the court holds that the rule of court allowing the 20-day window for “any other party to appeal from the same judgment or order,” triggered by the clerk’s mailing of the notice of the filing of an appeal, means just what it says, notwithstanding its “Cross-appeal” heading. Termo and Angus Development Corporation were co-petitioners in the administrative writ proceedings. The trial court denied the writ. Termo filed its notice of appeal from the judgment on the 59th day following service of notice of entry of judgment —…
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Blogroll Addition: “Courtoons”
Fellow Jones Day alumnus David Mills publishes a daily legal cartoon at his Courtoons blog, recently added to the blogroll under “Legal Humor Blogs.”
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Judge Kozinski’s “Dirty” Pictures May Not Be So Dirty
Remember the big “to do” about Judge Kozinski having posted material from an obscenity trial on his website? My prior coverage concentrated mainly on how this could affect his qualification to preside over the trial, and noted the interesting fact that Kozinski, an appellate judge, was presiding over a trial at all. There is another aspect to the media coverage that I did not give much thought to, and that is the way that the media painted the materials as sexually graphic and/or obscene. Considering the mischievousness that is usually attributed to Judge Kozinski, I figured that would be water off a duck’s back. And while it might have been…
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I’m on Blogging Hiatus until the New Year
I’ve had a hard time getting back up to speed since returning from being out sick. Fighting a lingering cold, catching up on old cases and jumping into new ones . . . being so busy and with Christmas approaching, this seems like a good time to take a blogging break. I do not plan to post again until at least January 2, 2009. I hope you all have a wonderful Christmas, a fun New Year’s celebration, and a fantastic 2009.
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Holiday Closure of Supreme Court’s Los Angeles Office
Be very, very careful with California Supreme Court filings over the holidays. The Los Angeles office of the Supreme Court be closed some of that time, requiring you to file in San Francisco. To get the closure dates, download the PDF of the announcement. By the way, the announcement also includes the news that the court’s L.A. office will also start closing for lunch between noon and 1 p.m. starting Monday, December 15, 2008.
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A Note to my Feed Subscribers
A glitch over the weekend resulted in a post to this blog that didn’t belong here. You’ll know it when you see it. Rather than trying to figure out what it has to do with appeals, rest assured that it doesn’t . . . it didn’t even belong on the blog! Sorry for any resulting confusion.
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When a lawyer must include one or more issue statements in a brief, either for purposes of clarity or because required by court rule, and the lawyer has trouble formulating a succinct issue statement that correctly identifies the parties and the critical facts necessary to an understanding of the statement, where can the attorney find a resource to help him write a clear, succinct issue statement that is easily understood by the reader?
No, I haven’t “lost it” during my absence. The title of this post is a parody of a bad issue statement — something we all see way too often. As for an answer to the question itself, this looks like a pretty darn good place to start.
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Happy Thanksgiving, Everyone! And has anything interesting happened while I’ve been out?
Just a short post to wish everyone a happy Thanksgiving Day. My work schedule remains light as I continue to struggle through whatever crud I have. Honestly, I thought I’d be over this by now, but the duration of this energy-sapping malady is going on four weeks! Thanksgiving Day reminds me, however, that I should grateful my illness amounts to nothing more than a severe inconvenience. I haven’t been looking at the courts’ output for the last month or so, so if there’s anything of appellate interest that you think I should write about, email me with the case information and I’ll try to get to it. I am hopeful that…
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Where are all the new posts?
Regular readers who are wondering where I’ve gone (and are, hopefully, disappointed at my lack of posting the last few weeks) should know that the blog lives! I, on the other hand, have barely felt among the living the last few weeks, dogged by some kind of head/sinus/allergy/flu/who-knows-what-it-is that has really wiped me out. I’ve been able to work only on those projects demanding my immediate attention. Since my blog can’t be dismissed for failure to post, while my cases can be dismissed for failure to file, my limited hours of coherence each day have been devoted to my cases. I finally feel like I’m on the mend, and hopefully,…
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The Mindset of Appellate Judges
Here is a well-stated look into the minds of appellate judges, from a 2-year old column by Howard Bashman: One essential trait that an appellate lawyer must possess is the ability to think about legal issues from the perspective of judges who serve on appellate courts. Appellate courts are not only responsible for trying to reach the correct result in the cases on appeal, but their rulings often create precedents that will govern other cases that don’t even exist yet. Thus, an appellate lawyer must be cognizant not only of how existing precedent will affect an appellate court’s view of a newly filed appeal, but also about how the precedent…
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Does it Matter Who’s On Your Panel?
Our local appellate court in Ventura (Second District, Division Six) can be a good place to hang out if you’re looking for a chuckle. I don’t think I’ve ever left a session there without having at least once laughed, or at least smiled — just not in my own case. No, I don’t laugh at anybody . . . I laugh with them. At a recent session, a somewhat mischievous question from the presiding justice brought some grins to those waiting and provided food for thought. Presiding Justice Arthur Gilbert is well known for his wit, and recently it even came out during the criminal case calendar. Usually, all four…
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Ever Felt Like Using an Expletive at Oral Argument?
I imagine swear words are material to cases quite often, especially in defamation or employment cases (the latter being the first time I had to put one in a brief). But I suspect they are rarely the focus that they will be in oral argument in this case before SCOTUS. Apparently, “Justice Roberts is undecided on whether or not he should even allow the lawyers to use the words — and if so, whether to allow the argument’s audio to be played on C-SPAN.”
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Got a stay? Challenge the judge anyway!
Under Code of Civil Procedure 170.3, subdivision (c), a party may apply to disqualify the trial judge for cause, but must submit the statement of objection “at the earliest practicable opportunity after discovery of the facts constituting the ground for disqualification.” In Tri Counties Bank v. Superior Court (Amaya-Guenon), case no. F055084 (5th Dist. Oct. 28, 2008), Tri Counties tried to convince the court of appeal that its seven-month delay met the “earliest practical opportunity standard” under the circumstances of the case. No dice. And in rejecting that contention, the court of appeal makes an interesting exception to a stay of proceedings in the trial court. Tri Counties asserted that the the judge…