As much as I keep up with appellate issues, some things catch me by surprise. According to this article: “There has long been debate in appellate circles whether reply briefs serve a worthwhile purpose. Some wonder whether justices even read them.” Really? I’ve never doubted the value of a well-written reply brief, nor have I heard others question their value. Though reply briefs are optional, I can’t imagine I’d ever decide against filing one. If you’d like to read what some appellate justices have to say about them, check out Are Reply Briefs Really Necessary? The Recorder e-mailed all 103 appellate justices in California for their views on reply briefs…
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Flexibility on Appellate Jurisdiction
“Jurisdiction” and “flexibility” are terms that don’t really go together . . . most of the time. But I’ve taken note before of the willingness of California appellate courts to “save” appeals through various devices, such as a generous construction of the notice of appeal, or treating an appeal from a non-appealable order as a writ petition. In fact, these devices are used to save appeals from plainly non-appealable orders. They can also be employed where appellate jurisdiction — or lack of it— is less than clear, as in People v. Segura, case no. S148536 (Aug. 4, 2008), where the Supreme Court avoids deciding the issue by treating the appeal as…
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“E” is for “Explain”
If you’re writing according to a typical “IRAC” formulation, Professor Mark E. Wojcik of John Marshall Law School and the Legal Writing Prof Blog says you’re leaving an important letter out of that acronym. Go to SSRN to download his article from the November 2006 Student Lawyer (yes, 2006, but he just posted the link yesterday) on why adding an “explanation” step to your analysis is helpful.
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Time for Another WordPress Upgrade
I’m behind in upgrading to WordPress version 2.6, so I’m going to try to do it this weekend. That means a brief outage during the upgrade process. Previous upgrades have gone smoothly, and with any luck, the blog should not be down more than about 15 minutes, probably late Friday or Saturday night.
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Report from the Pepperdine Conference on Judicial Opinion Writing
Pepperdine hosted a conference Wednesday on the craft of judicial opinion writing, with a panel that included Justice Samuel Alito. LA appellate attorney Ben Shatz attended and today posts his write-up of the event at the Los Angeles County Bar Association Blog, En Banc. His post is worth a read, especially if you wish you had been there. Two things jumped out at me from Ben’s report. First: Where were all the lawyers? Ben notes that the auditorium didn’t exactly look empty, but wasn’t close to capacity, either, and he wonders if Justice Alito is unpopular with the bar. Second: Tenth Circuit Judge Michael McConnell gave some praise to the…
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My New Digs . . . and New Everything Else
Some of you may have noticed some changes in sidebar information that clued you in to my recent relocation and change of practice name. Most of you probably didn’t, so here’s everything you need to know (more than you need, actually) in one post. First, the new digs. I’ve moved from Ventura to Oxnard, and specifically to the Fisherman’s Wharf area of Channel Islands Harbor, where you’ll find the fine gentleman at right (the one in the yellow coat) standing post in front of the Ventura County Maritime Museum, which is in the building next to my office. I’ve gone from a professional building in a busy part of town…
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Judge Bybee Pokes Fun (Update: He’s Not Alone)
When the Ninth Circuit Court of Appeals judges convened for their conference last year, they did so amid a lot of buzz about whether the circuit should be split up. If there is a similar cloud surrounding this year’s conference, I haven’t caught on to it. But a lack of press buzz is no barrier to discussing the circuit’s checkered reputation. WSJ.com Law Blog summarizes Judge Bybee’s funny presentation about how the Ninth is viewed through the eyes of various institutions. Update (8/1/08): Judge Bybee isn’t the only judicial joker this week. Tenth Circuit Judge Michael McConnell earned some laughs this week by noting that the Constitution refers to his…
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Why Did the Supreme Court Punt on a Jurisdictional Issue?
Regular readers know I am a jurisdiction geek, and today I get to sink my teeth into a jurisdictional oddity. Well, not a jurisdictional oddity so much as the odd behavior of the Supreme Court with respect to a jurisdictional question. I’ll get to the Supreme Court in a minute. First, a brief rundown on the issue from the case that led me to raise the question in the title to this post. In State of California ex rel Department of Pesticide Regulation v. Pet Food Express Limited, case no. C057156 (3d Dist. July 31, 2008), the court of appeal holds that an order enforcing an administrative subpoena is appealable.…
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Does Legal Writing Get Short Shrift at Law Schools?
Ray Ward at the (new) legal writer wonders out loud about the practice of using fellows (one-year contract instructors) to teach legal writing. Make sure you read the comments, which come from prominent legal writing bloggers Wayne Schiess and Alan Childress of The Legal Profession Blog, and perhaps more by the time you get there.
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The Cover of
Rolling StoneCITATIONSYou youngsters out there may not get the Rolling Stone reference (a big, big, song in the early 70s), but it is an irresistable one for me to make in announcing my newest article, because the article is featured on the cover of the August 2008 CITATIONS (along with my picture, to the great misfortune of the magazine’s subscriber base). CITATIONS is the monthly magazine of the Ventura County Bar Association (full disclosure: I am on the editorial board). The article is about my experience during my first year or so of blogging. I thought it was timely, given a recent California Lawyer column that advised solo and small firm lawyers against…
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How “Intense” is Your Appellate Panel?
It might make a difference in how the members of the panel view your brief! In this highly unusual study, the authors looked for correlations between the use of “intensifiers” — words like “clearly,” “obviously,” “blatant” and “very” — in appellate briefs and the outcome on appeal. From the abstract of the paper: This article describes two empirical studies of appellate briefs, which show that the frequent use of intensifiers in appellate briefs (particularly by an appellant) is usually associated with a statistically significant increase in adverse outcomes for an offending party. But – and this was an unexpected result – if an appellate opinion uses a high rate of…
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Lawyers Must Eat — Getting Your Attorney Fees on Appeal
You’d be hard pressed to find a better overview of federal appellate review of attorney fee awards than Moreno v. City of Sacramento, case no. 06-15021 (9th Cir. .July 28, 2008). Judge Kozinski’s analysis begins with the truism “lawyers must eat,” then goes on to analyze the district court’s attorney fee award under 42 U.S.C.§ 1988, and thus looks at the issue from the perspective of the policies underlying attorney fee awards in civil rights cases. Of particular interest is the section on fees for the appeal. Here’s a two-question quiz. Do you know the proper forum for making your application for fees on appeal? If you said the court…
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A Little Bit Funny, Mostly Not
When I found this Youtube video, I was hoping to send everyone off on their weekend with a good laugh. Then I watched it. Don’t get it. At all. Which is why I’m not embedding it here, and you’ll have to follow the link. If you think you get it, leave a comment. Nonetheless, I looked at part 2 of the video, and that one does have a pretty funny sequence starting around the 1:20 mark, and another starting at about 3:30. Since this appears to be a legitimate research training video with a laugh track added, and the humor arises (presumably unintentionally) from the dialogue in the training video,…
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Appealing a Remand Order, and Intra-Circuit Stare Decisis
When I was in BigLaw, removing a case to federal court seemed a virtually automatic response to any suit that we believed implicated federal jurisdiction. If the federal district court refuses to exercise supplemental jurisdiction and remands the case back to the state court, how do you contest that ruling? That was the question facing the court in California Dept. of Water v. Powerex, case no. 06-15285 (9th Cir. July 22, 2008), and the answer required it to answer two jurisdictional questions. First, does 28 USC §1447(d) preclude the court from exercising jurisdiction to review the remand order in any fashion? If not, then what is the method by which…
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CARFAX Should Publicize This One
Image via Wikipedia CARFAX, a company that provides vehicle histories for automobiles (largely to used car buyers before the purchase) already runs some pretty clever ads on TV, so they don’t need any advice from me. But they might want to publicize this: Does the Motor Vehicle Information and Cost Savings Act (“the Odometer Act” or “the Act”), 49 U.S.C. §§ 32701-32711, and its implementing regulations, 49 C.F.R. pt. 580, allow a private right of action where the fraud relates to something other than the vehicle’s mileage—in this case, its accident history? *** [W]e conclude that the private right of action under the Odometer Act is limited to allegations of…
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A Supreme Editor is Needed
Mister Thorne of the Set in Style blog likes to poke gentle fun at lawyers’ writing mistakes in order to remind us that we need editors as much as anyone, even though — in fact, because — we craft words for living. In this post, he links to a legal writing website that dissects eight grammatical errors in the recent SCOTUS gun rights case, D.C. v. Heller, and links to an ad soliciting an attorney editor for the California Supreme Court, placed in what I would have thought was a rather unconventional place, considering the job.
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What Constitutes Extrinsic Evidence that Changes the Standard of Review?
Well-established, seemingly clear principles like contract interpretation being a matter of law (absent ambiguity requiring extrinsic evidence to resolve), and de novo review of legal questions aren’t always so clear in practice. California National Bank v. Woodbridge Plaza, LLC, case no. G038623 (4th Dist. May 30, 2008, ordered published June 20, 2008) is a case in point. At issue was the meaning of a lease provision that determined the maximum rent for the extended term. The landlord, who prevailed at the bench trial, contended that the court’s interpretation of the lease was governed by substantial evidence review because there was conflicting opinion testimony on the meaning of the lease provision.…
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This Took Me By Surprise
When an appeal from a probate order starts by telling you that the intestate’s daughter, girlfriend of 12 years, and estranged wife all claimed portions of the estate, I’m betting most people will suspect that the opinion will be about a dispute between the girlfriend and the wife. If the case is Estate of Bonanno, case no. B200340 (2d Dist. July 22, 2008), though, you’d be wrong. Turns out the dispute here is between the wife and daughter, and its not even about property per se. It’s about an order obtained by the wife to have her share of the estate (determined in a settlement among the three) pass to…
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A Habeas Class Action
The Prison Law Office, appointed to represent a formerly pro per habeas petitioner who contended the parole board was late in hearing his case, decided to go for a brass ring by filing a class action habeas petition on behalf of all prisoners similarly situated. And they got it . . . at the trial level. Here”s the succinct summary from the opinion in In re Inez Tuto Lugo, case no. A114111 (1st Dist. July 21, 2008): The proceeding giving rise to these consolidated appeals began simply enough with a habeas corpus petition filed by a prisoner who claimed his parole suitability hearing had not been conducted within the time…
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It Turns Out that Your Appendix on Appeal is Quite Similar to the One in Your Abdomen
“Your appendix is a vestigial organ with no known function but it will kill you if it goes awry.” That’s the clever moral Professor Childress of Legal Profession Blog draws from the story of the attorney who inadvertently submitted an appendix that included his margin notes commenting on the court’s prior opinion. His post also has additional links regarding the story. Of course, your appendix on appeal does have a function (though I can understand how the temptation to write that line was irresistible to Professor Childress). But the larger point remains: proof your appendix as carefully as you do your brief.
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A Disregard for Fiduciary Duties that is “Without Precedent”
Picture this: You represent the defendant in a lawsuit. You don’t have time to handle his case — indeed, you admit as much on the record — and the court imposes terminating sanctions against your client for failing to respond to discovery. Because of your admission, your client is allowed to obtain new counsel, but new counsel is unsuccessful in getting the sanctions order vacated, and a default judgment of $730,000 is entered against your client, who then promptly sues you for malpractice and, while that suit is pending, appeals the default judgment. What do you do, besides give notice to your malpractice carrier? If you’re the defendant’s first attorney…
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It’s Now Official: It’s Not OK to Strip-Search a 13-Year-Old Girl for Ibuprofen
There was a lot of law blog coverage when a Ninth Circuit panel held that a strip search that required 13-year-old Savana Redding to expose her breasts and pubic region during a search for Ibuprofen did not violate her Fourth Amendment rights. As I wrote in my post, despite my gut- level reaction that the search was wrong, I found the majority opinion was well reasoned. Still, the dissent won me over; it was even better reasoned and, while both opinions centered around New Jersey v. TLO (1985) 469 U.S. 325, the dissent was better supported by authority. Along with my gut, that was enough, so I was among those happy to see en banc rehearing granted. In today’s en banc opinion, Redding…
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Patrol Cars are Traffic, Too
Image via Wikipedia In People v. Logsdon, case no. G038366 (4th Dist. May 28, 2008, ordered published June 24, 2008), the defendant contended that the officer following him on an otherwise nearly deserted street in the middle of the night lacked cause to stop his vehicle after defendant crossed several lanes of traffic without signaling. Defendant contended that in the absence of other traffic, his unsignaled lane change was a safe move. He forgot about the patrol car following him! The court holds that the officer who made the stop constituted traffic that needed warning of the lane change. There’s an interesting angle to this case from an appellate perspective…
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Happy Independence Day
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New Entry in “Worst Brief Ever” Competition
I’m beginning to wonder if I should start a new blog post category for “bad briefs.” I’ve told you about the Ninth Circuit dismissing a case as a sanction for briefing deficiencies and the California Court of Appeal explaining why a poorly written opening brief made it nearly impossible to discern the arguments being made. Now comes the “cut-and-paste” brief. As described by the First Circuit in the unpublished Rusli v. Mukasey, case no. 06-1941 (1st Cir. June 27, 2008) (citations omitted): The brief filed by petitioners’ counsel, Yan Wang, is a “cut and paste” affair that appears to present the facts of another case — notably for a person…
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Keep Appealing Orders Denying Post-Conviction Motions on Jurisdictional Grounds
People v. Picklesimer, case no. C056385 (3d Dist. July 2, 2008) reminds me of one of those time travel conundrums. You know, the ones that go something like (to pick a grisly example), “If you go back in time and kill your mother before she even gets pregnant with you, how can you ever exist so that you can go back in time and kill her?” In Picklesimer, the court of appeal dismisses an appeal because the appeal is taken from an order denying the defendant’s post-conviction motion for relief from the sex offender registration requirements, which the trial court denied on the ground that it lacked jurisdiction to grant…
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Mistakes in Big SCOTUS Cases? (UPDATED)
Image via Wikipedia I ran across a couple of interesting posts claiming that various SCOTUS justices got the facts just plain wrong in at least three significant cases, including two very recent ones. Make of them — both the blog posts and the mistakes — what you will. CAAFlog, a military law blog, reports that both the majority and dissenting SCOTUS justices in Kennedy v. Louisiana, case no. 07-343 (June 25, 2008), were wrong in noting that the federal government had not made child rapists eligible for the death penalty. According to CAAFlog, the Uniform Code of Military Justice makes child rapists in the military eligible for the death penalty.…
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Everyone Got It Wrong on the Deadline to Appeal
It is a critical question, and one that can occasionally confound: what is the deadline to appeal? In Hearns v. San Bernardino Police Department, case no 05-56214 (9th Cir. July 1, 2008), neither the parties nor the trial court got it right. Believing his deadline to appeal an order dismissing his compaint had already passed, Plaintiff filed a Rule 60(b)(6) motion for relief from the order. The district court denied the motion, but granted a 10-day extension of time to appeal. After plaintiff appealed, defendants cross-appealed the order granting the extension. Clearly, all of the parties and the district court thought that the extension was necessary. It wasn’t! Plaintiff’s appeal was…
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The Ninth Offers a Party a Hint on a “Non-Issue”
It’s hardly uncommon to see a reviewing court remanding a case to give some pointers to the trial court and even to the parties or their counsel. But it’s usually across-the-board advice or a warning against future misconduct. I thought the advice offered in Duarte v. Bardales, case no. 06-56808 (9th Cir. July 1, 2008 [order denying rehearing and rehearing en banc]) was a little different and arguably partisan. In the original opinion, the Ninth had reversed the trial court’s denial of a motion to vacate, under Federal Rule of Civil Procedure 59(e), of a judgment denying Duarte’s “petition for the return of her children pursuant to the Hague Convention on the Civil Aspects…
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California Attorney Fee Recovery Preempted by ADA – and a Note on Missed Issues
It’s quite common for plaintiffs to sue under similar state and federal provisions. The disabled plaintiffs who sued under both the federal Americans with Disabilities Act and the California Disabled Persons Act in Hubbard v. Sobreck LLC, case no. 06-56870 (9th Cir. June 27, 2008) did themselves a favor by doing so, as the court finds that the prevailing defendant’s right to attorney fees under the CDPA is preempted by the more stringent fee provision in the ADA. The ADA fee provision makes fees discretionary, but that has led to a practice of awarding fees to defendants only where the plaintiff’s case is frivolous. The CDPA, on the other hand,…