Modern communication and the California Rules of Court collide in Citizens for Civic Accountability v. Town of Danville, case no. A121899 (1st Dist. Oct. 27, 2008), and the winner is . . . the rules! At issue: whether the e-mailing of a notice that a judgment has been filed, with a link to access a copy of the judgment, triggers the deadline to appeal under rule 8.104(a), California Rules of Court, which provides that a 60-day deadline to appeal is triggered when the clerk “mails” a notice of entry of judgment or a file-stamped copy of the judgment. The trial court designated the case complex litigation and ordered compliance with the…
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The Judgment, the Whole Judgment, and Nothing But the Judgment
Sometimes, a judgment is a mixed bag. That’s how all the parties must have viewed the judgment in Satchmed Plaza Owners Assn. v. UWMC Hospital Corp., case no. G038119 (4th Dist. Oct. 23, 2008). The judgment enforced Satchmed’s right of first refusal with respect to 22 owned medical office units by requiring UWMC to offer them to Satchmed at a certain price. But the judgment did not require such an offer on 12 other units, which were leased. Unsurprisingly, perhaps, the judgment stated that there was no prevailing party. Mixed bags create competing incentives. Here, one incentive got the best of Satchmed. UWMC complied with the judgment by offering the…
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New Law Blog: The California Constitution
Well, a young blog, at least, if not brand spanking new. The California Constitution was launched in August by Howard Rice partner Steve Mayer. Good luck! Hat tip: California Punitive Damages.
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Why Some Lawyers and Their Clients are Reluctant to Engage Appellate Counsel, Part 4: “This Case Needs a Specialist.”
(NOTE: This post is the fourth in a series. To read the announcement of the series and/or leave your ideas for subsequent installments, click here.) Today’s post looks at another ability-related reason the trial lawyer decides to handle the appeal. He — and in this case, I’m referring to a trial lawyer that specializes in some substantive area of the law — thinks to himself: “This case needs a specialist.” The trial lawyer who says that rarely means an appellate specialist. Instead, the ace employment lawyer (to use just one example) thinks, “This employment case needs an employment lawyer like me on appeal, I can’t pass it off to an…
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What does “abuse of discretion” mean in your case?
Sometimes, it seems that defining an “abuse of discretion” is like nailing jello to the wall (maybe worse, since the latter is difficult, but not impossible). There are many nuances to the standard, which can depend on the statute being applied, the basis for the abuse of discretion, and the particular procedural posture of the case. The last of these variables is what helps the appellant overcome this highly deferential standard of review and have the default judgment against it lifted in Fasuyi v. Permatetex, Inc. case no. A117760 (1st Dist. Oct. 15, 2008). Permatex made a motion under Code of Civil Procedure section 473 to vacate the default judgment against…
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Procedural Exits off the Appellate Freeway
A year or so ago, I heard a California appellate court justice advise that the court of appeal examines every case for issues that will allow the court to dispose of the case without reaching the merits. He explained the process with a metaphor, which I’ll try to convey in this post (paraphrasing throughout). “Envision an appeal as the freeway between Fresno and Los Angeles, with Fresno being the filing of the notice of appeal and Los Angeles being a decision on the merits,” he said. “Now, think of each exit on that stretch of freeway as an opportunity for the court not to reach the merits. The court would…
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Why Some Lawyers and Their Clients are Reluctant to Engage Appellate Counsel, Part 3: “No one knows the case better than I do.”
(NOTE: This post is the third in a series. To read the announcement of the series and/or leave your ideas for subsequent installments, click here.) Today’s post looks at another ability-related reason the trial lawyer decides to handle the appeal. He thinks to himself: “No one knows the case better than I do.” Who could argue with that? The trial lawyer may have spent hundreds or thousands of hours on the case over several years. Met every witness personally and attended every deposition. Pored through every discovery response, every document, every exhibit and every transcript. Several times. And yet . . . I still think it unwise, in most circumstances,…
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Judicial Opinion Shortcuts: Skipping the Substance of the Argument
Sometimes, a judicial opinion leaves you wondering what a party contended on appeal. That’s always a little frustrating. OK, not always, but when it involves a pet interest (in my case, jurisdiction), it leaves one wanting more. Such is the case with White v. Mayflower Transit, case no. 07-55528 (9th Cir. Sept. 12, 2008), in which the court writes that the pro se appellant contended that the district court lacked removal jurisdiction over the case. But they don’t explain the substance of the appellant’s argument. They merely explain how the facts of the case demonstrate the applicability of a federal statute that grants exclusive jurisdiction to the federal courts. Pretty cut-and-dried. Why…
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A Double Standard . . . of Review
An appropriate follow-up to last week’s post that discussed the pitfalls of the standard of review is United States v. Vega, case no. 07-50245 (9th Cir. Sept. 24, 2008). It illustrates a double standard that one wouldn’t ordinarily expect. In the district court, Vega challenged two conditions on the supervised release portion of his sentence. On appeal, however, he argued that a third condition of his supervised release was also error. You might think he’d be out of luck entirely on that third condition, the general rule being that an argument cannot be made for the first time on appeal But he’s not. Though Vega did not challenge the third condition…
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Don’t Forget, Appellants: The Record is Your Burden, Too
Everyone knows, or should know, that part of the appellant’s burden of demonstrating prejudicial error is to present a record that adequately demonstrates the error. If you’re arguing the court erred in granting summary judgment, you’d think it would be pretty obvious to include all the moving papers, including the moving party’s statement of undisputed material facts (Code Civ. Proc. § 437c, subd. (b)(1)). The appellant in Gunn v Mariners Church, Inc., case no. G038445 (4th Dist. Sept. 2, 2008, ordered published Sept. 30, 2008), failed to include the moving party’ separate statement, with potentially dire consequences, but catches a break from an accommodating court: Critical to our review of…
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A Great Resource: Social Science Research Network
I’ve occasionally downloaded scholarly papers from the Social Science Research Network, usually after seeing them mentioned at the Legal Writing Prof Blog. But until that blog’s recent post about how to stay up-to-date with the latest articles on legal writing, which provides links for subscribing to legal writing articles, I hadn’t really poked around SSRN very much. I took the time to do so this evening, and discovered there are some terrific features. Besides the subscriptions, there is a “briefcase” feature that allows you to accumulate articles of interest for later access. Going though the subscription list, I flagged about 30 papers published just this year. I’ll probably be posting…
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A Lesson in Collateral Order Doctrine Jurisdiction
Some lawyers not well-versed in appellate jurisdiction may find themselves fighting against one of two extremes when it comes to interlocutory decisions: the impulse to appeal everything (appealable or not), or failing to evaluate interlocutory orders for possible exceptions to the “final judgment rule,” figuring “why bother” until a final judgment is entered. Then there are those in the middle who recognize opportunity in interlocutory orders, and seize it. Such were the lawyers representing the appellants in Lazy Y Ranch Ltd. v. Behrens, case no. 07-35315 (9th Cir. Sept. 26, 2008). Lazy Y sued, alleging a violation of equal protection, after its bids for grazing on state land were rejected…
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Why Some Lawyers and Their Clients are Reluctant to Engage Appellate Counsel, Part 2: “It’s Just Litigation.”
(NOTE: This post is the second in a series. To read the announcement of the series and/or leave your ideas for subsequent installments, click here.) In my first post in this series, I broke down lawyers’ reasons for not engaging appellate counsel into two broad categories: those related to ability and those related to economics. Today, we will examine a reason related to ability: “It’s just litigation”, or “Hey, I’m a litigator, and appeals are litigation, so I can do it.“ Are appeals litigation? Well, let’s see. Adverse parties? Check. Legal and/or factual disputes? Check. Courtroom and judges? Check. Judgments? Check. Yeah, I’d say that appeals are litigation. That said,…
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Proposed Meeting of Law Bloggers at the California State Bar Convention
Victoria Pynchon of the Settle It Now Negotiation Blog asked that I pass along her suggestion for a law blogger meeting at the California State Bar Convention this week, and I do so gladly. From Victoria: Please let me know if you’re interested in a legal bloggers meeting at the state bar convention in monterey this week. We could have drinks at the Hyatt between, say, 5 and 7 on the 27th — the annual dinner & cabaret starts at 7 p.m. that evening — Saturday — and we could just flow into that event; or we could do Thursday AT the Opening Night reception, which starts at 5:45 .…
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Gee, We’re Smart!
At his Legal-Writing Blog, Wayne Schiess shares some observations from one of his students, who aspires to be an appellate lawyer and worked in the appellate practice department of a law firm. See the professor’s post for all the details, but among the student’s observations: I realized why appellate lawyers at law firms are stereotypically labeled as the smartest lawyers at the firm. The fact that they can come to work, day in and day out, and spend hours thinking and writing at such a level makes them nothing less than brilliant, if you ask me. I can’t figure out why, but that was my favorite part. Actually, I think it’s…
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Why Some Lawyers and Their Clients are Reluctant to Engage Appellate Counsel, Part 1: Categories
(NOTE: This post is the first in a series. To read the announcement of the series and/or leave your ideas for subsequent installments, click here.) Well, it’s been four weeks since I promised a series of posts on this topic. You were probably about to give up on me. I started the first post, and it kept growing, and growing, and growing . . . clearly, some better way of organizing the topics was necessary. And I’ve devoted substantial time to it. How did I get to this point? I started writing about what I figure is the number one reason lawyers don’t engage appellate counsel. The trial lawyer thinks…
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Peremptory Challenge to Judge After Remand Has Its Limits
Virtually every civil litigator knows about the procedure afforded by Code of Civil Procedure section 170.6 for disqualification of the judge assigned to the case. Commonly called “papering the judge,” the requirements of the section are so meager that such challenges are also referred to as “peremptory” challenges, though not technically so (to my mind), and my guess is that any civil litigator who has practiced for more than a few years has invoked section 170.6 at least once. Maybe you didn’t know that this disqualification procedure is available even after reversal on appeal. Subdivision (a)(2) of section 170.6 provides A motion under this paragraph may be made following reversal…
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2008 California Court Statistics Report
Now available for PDF Download: 2008 Court Statistics Report: Statewide Caseload Trends, 1997-1998 through 2006-2007. Always interesting to peruse. The first thing to jump out at me from this year’s report (in my thus far rather hasty review): the median time statewide for civil appeals (from time of filing the notice of appeal to the time of disposition) was 432 days in 2006-2007. That’s roughly 14 months. And 90% of all civil appeals are disposed of within 680 days, or about 22 months. These are statewide numbers. Some districts are better than others. I may be wrong, but I think there is a general impression among many clients (and perhaps…
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Law School Rankings Under Scrutiny Again
When I last wrote about law school rankings (in the summer of 2007), it was in response to a post at the Law School Innovation blog rounding up some reporting and commentary on law school rankings, including an article in National Law Journal about a potential boycott of magazine rankings surveys used by the magazines to rank the schools. I don’t know whether any schools actually protested through a boycott, but yesterday’s Wall Street Journal gives the schools more food for thought. Their front-page article, Law School Rankings Reviewed to Deter ‘Gaming,’ discusses the practice of some schools to admit lower-qualified candidates only to their part-time programs, where the qualifications…
- Appellate Procedure, California Procedure, Discovery, Mandamus/Prohibition, Standard of Review, Writ Practice
An Important Discovery Ruling Overcomes a Deferential Standard of Review
For a prospective appellant (or, as in the case profiled here, the prospective writ petitioner), the “abuse of discretion” standard of review can be daunting, and may even convince the party that the pursuit of an appeal or writ is not worthwhile. Not only does it set a high bar for reversal, but it can be very difficult to define within the circumstances of a case. (I’ve written before about the somewhat hazy nature of the “abuse of discretion” standard of review.) Against this backdrop, Alch v. Superior Court, case no. B203726 (2d Dist. Aug 14, 2008) presents a very interesting discussion of the standard as it introduces its decision…
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A Running Feud Between Courts?
Well, maybe “running feud” is a tad strong, but Legal Pad notes a history of bad blood between a California superior court judge and his district court of appeal. Hat tip: Cal Biz Lit.
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Legal Writing Prof Blog’s Favorites
Check out Legal Writing Prof Blog’s list of favorite legal writing blogs and resources. Hat tip: the (new) legal writer.
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Help Out Law Blogger Kimberly Kralowec
Looks like this is the week for appellate bloggers to embark on projects and solicit help from their readers. Unbeknownst to me until now, the day before I announced my intent to publish a series of posts on the reluctance of lawyers and clients to engage appellate counsel, Kimberly Kralowec (pictured left) at The Appellate Practitioner (better know for her excellent The UCL Practitioner) announced that she will be examining what works when asking the Supreme Court to depublish a case. Toward that end, she’s asking readers to submit successful depublication requests. Send them to her at uclpractitioner@gmail.com.
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“A Sadistic Urge to Torment Lawyers”
Image via Wikipedia I always assume that all of the rules of procedure will be strictly construed against me, and that opposing counsel will be allowed to get away with murder. To me, it’s the smart way to practice: dot your I’s and cross your T’s. In Whitehead v. Habig, case no. G037991 (4th Dist. May 28, 2008, ordered published June 5, 2008), the appellants had appealed a summary adjudication and default judgment on the remaining claims. In opposing the summary adjudication motion, the appellants never filed their own separate statement of undisputed and disputed material facts (Code Civ. Proc., § 437c, subd. (b)(3); Cal. Rules of Court, rule 3.1350(e));…
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Why Are Some Lawyers and Their Clients Reluctant to Engage Appellate Counsel?
UPDATE: This post is included in Blawg Review #174 at Texas Appellate Law Blog. Why don’t some trial lawyers or their clients engage appellate counsel when it comes time for the appeal? Over the years, I’ve heard various reasons advanced for this. Among them: lawyers see no need to hire new counsel for something they can do themselves, lawyers are afraid to lose the client forever to the appellate lawyer or his firm, lawyers and their clients are afraid that the appellate lawyer won’t know enough about the specialized area of law involved in the appeal, clients are too comfortable with the trial lawyer to switch, clients are fed up…
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The Results of the Shootout at the Amicus Corral
In a case that attracted amicus participation of noteworthy proportions, the California Supreme Court holds that a medical provider has no constitutional defense, based on freedom of religion and freedom of speech, to a claim for sexual orientation discrimination under California’s Unruh Act (Civ. Code, § 51). The doctor defendants had refused artificial insemination services to a lesbian and contended that they did so for religious reasons. The Supremes find no such exception under the federal or state constitutions. The court finds that because the Act is a facially neutral and valid law of general applicability, the incidental infringement on religious liberty that compliance requires cannot sustain a constitutional defense…
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Don’t Give Up On Appellate Jurisdiction
The appellate courts are zealous about protecting their jurisdiction. When in doubt, it is not unusual for a court to ask for briefing on the issue even where both sides have assumed jurisdiction. And so the Supreme Court does in People v. Segura, case no. S148536 (Aug. 4, 2008), which is interesting for a couple of appellate wrinkles. First, the background. The issue under review was: whether a prescribed jail term that constitutes a material provision of a plea agreement conferring as its chief benefit, a grant of probation in lieu of a prison sentence, may be modified by the trial court in the exercise of its authority to modify…
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It’s Kennedy’s Court
So says UC Irvine School of Law Dean Erwin Chemerinsky about the U. S. Supreme Court in his front-page piece in this month’s California Bar Journal. Simply put, on issues that are defined by ideology, the conservative position prevails in the Roberts Court except when Justice Kennedy joins with Justices Stevens, Souter, Ginsburg, and Breyer. Occasionally this term, Justice Stevens or Justice Breyer joined with the five most conservative justices to create a 6-3 or 7-2 vote for a conservative result. But never did one of the four most conservative justices — Chief Justice Roberts and Justices Scalia, Thomas and Alito — vote for a more liberal result in a…
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Pepperdine’s Justice Alito Event — Video Available
Pepperdine has video of the conference on judicial opinion writing that I commented on here (actually, I was commenting on Ben Shatz’s write-up of the event). Here’s the description accompanying the video: The Honorable Samuel A. Alito, Jr., associate justice of the United States, spoke on “Lawyering and the Craft of Judicial Opinion Writing” at the School of Law on Wednesday, July 30, to a crowd of more than 200 students, alumni, law professors, journalists, judges, and special guests. Justice Alito was joined by The Honorable Michael W. McConnell, United States Appellate Judge for the Tenth Circuit; The Honorable Walter E. Dellinger III, former United States Solicitor General; Pepperdine School…
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A Judgment that Nobody Noticed Sinks an Appeal
How can the parties and the court all miss the fact that the court entered a judgment? Well, when the document that operates as such isn’t labeled “judgment,” I guess one can occasionally slip by . . . to the appellant’s great misfortune in Melbostad v. Fisher, case no. A119514 (July 23, 2008, ordered published Aug. 4, 2008), in which the court of appeal dismisses the appellant’s challenge to a fee award as untimely. In Melbostad, the trial court granted defendant’s special motion to strike under California’s anti-SLAPP statute (Code of Civil Procedure section 425.16) and entered an order dismissing the complaint “with prejudice.” It subsequently granted a motion for fees brought by…