RIP Justice Rylaarsdam (1937-2020)

Today's DJ has Justice Moore's obituary tribute: Justice William F. Rylaarsdam, 1937-2020: From a village in Holland to the California Court of Appeal.

• Justice Rylaarsdam's first legal job, as a law clerk at the firm of Welch and Cummings, was arranged by his law school professor, Otto Kaus, who later became a California Supreme Court justice. The first case he ever tried, and lost for $1,250, was before the Hon. John Arguelles, who also ended up on the California Supreme Court.
• Justice Rylaarsdam practiced law for over 21 years, trying hundreds of cases, and was also involved in Pasadena politics. 
• In 1985, Gov. George Deukmejian appointed Justice Rylaarsdam to the superior court, first in Los Angeles and nine months later Orange County. 
• Governor Pete Wilson appointed Justice Rylaarsdam to the Court of Appeal in 1995. 

See also Moore, Dutch Treat, 28:2 Cal. Litig. (2015).

The DJ's obituary is William R. Rylaarsdam, 1937-2020: Fearsome justice mentored generations of attorneys.

• Colleagues remember Rylaarsdam as a prolific writer. He co-authored two law textbooks and wrote dozens of articles for the litigation section of the California State Bar. He was one of the longest-serving justices in the history of the 4th District, and a mentor to multiple generations of attorneys.
• Rylaarsdam grew up in The Netherlands under Nazi-occupation during World War II. He would later describe how his father built a false ceiling into part of the family's house to hide himself and other working age men from the Germans who were seeking slave labor.
• Rylaarsdam picked peaches with his father to make ends meet when he first arrived, something he said in later interviews helped him decide he wanted a professional career. He skipped high school, working a switchboard at the Modesto Bee while attending junior college. UC Berkeley would later give him a full scholarship.
• He worked for a veterinary supply company before choosing Loyola Law School over USC Gould School of Law, largely because it was less expensive. His son Daniel also attended Loyola Law School, while one of his grandsons is currently enrolled there.
• "Bill Rylaarsdam wasn't so much a jurist as a movie of the week," fellow Division Three Justice William W. Bedsworth wrote in an email. Rylaarsdam earned his tough reputation when unprepared attorneys entered his courtroom, according to Bedsworth.
• "He was a brilliant jurist, as fine a legal mind as I've ever encountered," Bedsworth wrote. "And he was not shy about displaying that brilliance. He not only did not suffer fools gladly, he did not suffer them at all."

Federal appellate jurisdictional problems

Looking for some 9th Circuit appellate jurisdiction fun? Then enjoy this opinion here, where the parties failed to address appellate jurisdiction in their briefing and so were told be ready at oral argument... Then things get messy with respect to Rule 59(e), tolling, etc., and the appeal gets dismissed.

And then there's this one here, about issues getting waived on appeal.

Be careful out there...
or pay the price!

Trio of DJ Appellate articles

Today's DJ is chock-full of appellate items:

• GMSR's Bob Olson and Ted Xanders offer A 'clear and convincing' appellate standard, about Conservatorship of O.B. "The appellate court does not weigh the evidence anew to decide for itself whether the record evidence is clear and convincing. Rather, it decides whether construing the evidence and inferences in favor of the finding, a reasonable factfinder could so conclude. As the U.S. Supreme Court explained the standard: "[T]he judge must view the evidence presented through the prism of the substantive evidentiary burden." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254-55 (1986) (italics added)." ... "Conservatorship of O.B. broadly applies to any appeal in which the clear and convincing evidentiary standard governed in the trial court. The opinion specifically discusses the appellate standard of review as applied in a range of cases requiring clear and convincing evidence, including interpretations of deeds and wills, punitive damages in civil cases, harassment, dependency and parental rights, marital separate property rights, oral agreements not to revoke wills, and reformation of insurance policies. The court's analysis logically applies to any other case involving that standard." "The 3rd District Court of Appeal already has applied Conservatorship of O.B. by evaluating record evidence against the clear and convincing threshold for a finding that defendant's employee was a managing agent for punitive damages purposes. King v. U.S. Bank National Assn., 2020 DJDAR 7891 (July 28, 2020)."

• And see OC Appellate Specialist Tapped to Lead Buchalter Practice: M.C. Sungaila spent the last five years as a partner at Haynes and Boone LLP, where she was appointed co-chair of the appellate practice earlier this year.

• Finally, the monthly Exceptionally Appealing column presents AWOL@OralArg.gone recounting tales of lawyers missing appellate oral arguments.

• And How Appealing notes: “All U.S. Appeals Courts Embrace Argument Streaming Due to Covid”: Madison Alder and Allie Reed [at Bloomberg Law] have an article that begins, “All 13 federal appeals courts now are livestreaming oral arguments compared to four prior to the pandemic, the latest sign of how Covid-19 has made U.S. courts more transparent.”

• Also, last month we missed reporting the DJ ADR profile: Multipronged Approach: JAMS neutral Richard Aldrich, a retired Court of Appeal justice, wrote a book on settlements. The profile recounts how, when he first got to the Court of Appeal, he "floated the idea" of an appellate settlement program for the 2d District, which was created and "turned out to work exceptionally well." He also recounts how Division 3 was a "hot bench": "when the lawyers got up to argue their case, they didn't get very far into their prepared argument before one of us would start asking the first questions, taking their argument to an illogical conclusion to test their theories."

"Chin up!"

That's the creative title for Gilbert Submits in today's DJ, about Justice Chin's retirement.

"Mention the name Justice Chin and one immediately thinks of his civility, collegiality and humor. He is down to earth and has no sense of self-importance, but he does have a keen sense of the importance of his work. His well-written opinions reflect a fair and objective exposition of the law. He reflects everything we expect from a judge -- humanity, objectivity, and professionalism."

Today's Moskovitz on Appeals in the DJ is titled Creative Brief Writing, and makes the point that there's room for creativity in organizing briefs. An example is to ditch the common practice of presenting all the facts from A to Z in chron order at the start of a brief if it makes sense instead to structure the brief differently given the arguments to be made. In short,  "If I think it will help the reader, that's what I want to do. I then look to see if any rule stops me from doing it that way. (I don't need a rule that allows me to do it.) If no rule stops me, I do it. Not always. If my idea goes against some very well-established custom that the judges are used to, I might hesitate and reconsider, because I prefer not to shock them. But usually I'll go for it anyway."

LACBA Virtual Career Fair, Aug. 27

The Los Angeles County Bar Association (LACBA) is always looking for ways to help the legal community connect. In that spirit, LACBA has joined with Web Scribble (its Job Board partner) for LACBA’s first Virtual Career Fair on Thursday, August 27, a one-day FREE event to help law job seekers connect with legal employers! https://jobs.lacba.org/events

 

RIP Judge Jerome Farris (1930-2020)

The 9th Cir. website has a link: Ninth Circuit Court of Appeals Mourns Passing of Judge Jerome Farris

(but it doesn't link to anything yet)... There's a nice obit here. [7/31 update: the 9th Cir. obit is now here.]

Justice Breyer's comments

Here's a (rough) transcript of Justice Breyer's remarks today at the ABA's virtual conference. He touches on a variety of interesting topics, including the "hostility" between LA and SF.

Video Salute to Justice Chin

Video: Colleagues Salute Retiring California Supreme Court Justice Ming Chin

Justice Ming Chin's career is one of many distinctions: son of immigrant farmworkers who rose to become the first Chinese-American on the state high court; author of more than 350 majority opinions and 100 separate opinions, including landmark cases on the use of DNA evidence; decorated Army veteran; and law professor.

He is also a man of habit, his fellow Supreme Court justices recalled, including a tendency to discreetly pass a box of mints down the bench during oral argument. He added M&M’s to the stash on suggestion from a colleague. “My only regret was that I didn’t ask for Belgian truffles,” quipped Justice Goodwin Liu.

Fellow California Supreme Court justices paid tribute to Justice Chin before his last oral argument, which was held by videoconference. As he reflected on his nearly 25-year career on the high court, Justice Chin ended his remarks on the vast impact of the COVID-19 pandemic and the nationwide focus on racial injustice.

"There is a Chinese character for crisis—it is made up of two characters: one is danger, the other is opportunity," Chin said. "There is much danger in the crisis that we are facing. Let us convert the dissatisfaction we have...and turn it into an opportunity to change, to grow, to improve the judicial system.”

Watch the full tribute:

Justice Chin's colleagues on the Judicial Council of California also gave tributes Friday, his last meeting as the council's vice chair.

Justice Chin became vice chair in 2015, capping more than two decades of service to the Judicial Council, which also included chairing the California Commission for Impartial Courts, the Court Technology Advisory Committee, and the Science and the Law Steering Committee.

"When it comes to court technology, there has been no more consistent champion than Justice Chin," said Judge Kyle Brodie.

Justice Marsha Slough thanked Justice Chin for his "mentorship, his friendship and most importantly to me, your sense of kindness as a human being."

"His generosity of spirit, his intelligence has always been a guiding light for me," added Judge David Rubin.

"Ming has been a fantastic colleague—smart, wise, visionary, passionate, articulate, and kind," said Chief Justice Tani Cantil-Sakauye. "He leaves a legacy of mentorship and inspiration to generations of students, lawyers, and judges. Ming is an iconic example of a jurist and public servant."

CWL program w/Justice Moore

CWL is presenting a Conversation with Justice Moore: Rose Carmen Goldberg, the CWL 2020 Fay Stender Award recipient joins her long time mentor, Associate Justice Eileen C. Moore, the CWL 2009 Joan Dempsey Klein Distinguished Jurist Award recipient, in conversation about their lives, work, and perspectives as women legal professionals committed to addressing military sexual trauma and the causes of veteran homelessness. MCLE: This activity has been approved for Minimum Continuing Legal Education credit by the State Bar of California in the amount of .50 hours plus .25 bias elimination credit. Time: July 30 @ 5:00 PM

SCOTUS: Someone's been talking...

CNN presents Joan Biskupic's Behind closed doors during one of John Roberts' most surprising years on the Supreme Court

This fascinating article contains behind-the-scenes reporting of deliberations that "are private and usually remain secret" ... unless there's a mole!

See also More Leaks from the Supreme Court.

Law360 recently ran some SCOTUS roundup articles:

• The Funniest Moments Of The Supreme Court's Term
• The Chattiest Justice Of The Term Is ...
• The Sharpest Dissents From The Supreme Court Term

Is that Clear & Convincing now?

Today the Cal Supremes issued the O.B. opinion about the clear and convincing standard of proof on appeal:

we hold that an appellate court must account for the clear and convincing standard of proof when addressing a claim that the evidence does not support a finding made under this standard. When reviewing a finding that a fact has been proved by clear and convincing evidence, the question before the appellate court is whether the record as a whole contains substantial evidence from which a reasonable factfinder could have found it highly probable that the fact was true. In conducting its review, the court must view the record in the light most favorable to the prevailing party below and give appropriate deference to how the trier of fact may have evaluated the credibility of witnesses, resolved conflicts in the evidence, and drawn reasonable inferences from the evidence. Because the Court of Appeal below believed that the clear and convincing standard of proof “ ‘ “disappears” ’ ” on appeal (Conservatorship of O.B., supra, 32 Cal.App.5th at p. 633), we remand the cause to that court for it to reevaluate the sufficiency of the evidence in light of the clarification we have provided.

Return to normal or embrace the change?

Today's On Appeals column in The Recorder ( by Susan Yorke) is On Appeals: The Surprising Humanity of Remote Work: We talk a lot about when things might “return to normal.” In the context of law practice, it may be worth asking whether they should.

• Remote appellate arguments, in particular, may have some surprising advantages in terms of reflecting our shared humanity. The design of the physical courtroom is intended to create a sense of solemnity, formality, and hierarchy. Judges are elevated above counsel and the public, placed at a distance from the lectern and audience. Counsel tables are on opposite sides of the room in front of the gallery. Appellate practitioners are constantly advised to maintain a conversational tone during argument, but how often do you have a casual conversation with someone who’s 15 feet away and 5 feet above you, while a gaggle of onlookers watch you from behind?
• In a video argument, the judges don’t loom from the bench. Remote meeting technology is a great equalizer—we’re all just boxes on a screen. For new attorneys or those prone to stage fright, remote arguments may encourage participation and help foster the natural dynamic that judges and advocates prefer. Indeed, the video arguments I’ve seen over the past few months have—technological hiccups aside—tended to be more conversational in tone.
• Of course, advocates should continue to maintain some level of formality. Wear a suit (top and bottom!), use a non-distracting background, address judges by their titles, and don’t interrupt. Still, a remote argument really can feel more like a conversation (after all, we chat with our friends on Zoom all the time now), and that helps judges get the information they need to decide their cases.
• Remote arguments also decrease the price of the proverbial “day in court.” For far-flung clients, having the option of a video argument can make a real financial difference. And for public-sector or nonprofit attorneys with limited budgets, eliminating the burden of travel saves time and money and may allow more lawyers to participate in arguments.

Justice Butz retires

Today's DJ has 3rd District appellate Justice Kathleen Butz is retiring:

• After 17 years on the 3rd District Court of Appeal, Justice M. Kathleen Butz is retiring, and thus ending her daily three-hour commute. She has been traveling 90 minutes each way from her home in Nevada City to her job in Sacramento.
• 3rd District Presiding Justice Vance W. Raye described Butz as a wonderful colleague, distinguished by her collegiality and diligence.
• While she calls herself retired, the justice is wrapping up pending matters and hopes to step off the bench entirely in the next few months.

Punishment Without Crime

Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal is the title of the book reviewed 2/8's Justice Stratton in the CSCHS Review (Spring/Summer 2020) here.

"This book is a must read and re-read for anyone who practices in the criminal justice system as it lays bare the ugly practical consequences of misdemeanor arrests and convictions. It is a must read for anyone debating the ramifications of People v. Duenas, now exploding across our state. It reminds us how we, as a society, use misdemeanor prosecutions not only to control criminal conduct, but also to control conduct that is neither blameworthy nor suitable for criminal sanction — or, in the words of the book’s title, how we impose punishment without crime."

Also not to be missed is James Leibson's profile: 

Justice Ming W. Chin: A Legacy of Public Service, Civility, andExcellence

Staying Power: Bonds 2.0

This month's LA Lawyer magazine features H&L's David Axelrad's Staying Power 2.0 Update on the Law of Appeal Bonds.

Insults and invective are no substitute for argument

Today's lesson in appellate briefing ethics comes from the 6th Circuit as is being widely covered: See
Lawyer's 'Colorful Insults' Crossed a Line, 6th Circuit Panel Says ("We cannot dismiss the disparaging statements in this case as mere stylistic flourishes or vigorous advocacy," Judge Amul Thapar of the U.S. Court of Appeals for the Sixth Circuit wrote.) and "There are good reasons no to disparage your opponents, especially in Court filings"

The ABA Journal has an interesting article here about a law prof who polices the language in SCOTUS opinions.

For pro pers, the LA Law Library offers Appeals: How the Court Process Works

Watch BASF program for free

The recent BASF program on the State of the Appellate Courts has been put on the web and can be watched free of charge! If you want MCLE credit, you need to pay, but for anyone just looking for the content, details are here: https://calapplaw.com/2020/07/22/ben-feuer-moderates-state-of-the-appellate-courts-cle-now-available-onli

And the video is here: https://vimeo.com/440454814