Law360 appellate articles

Law360 offers a number of appellate goodies today.

• Miller of Perkins Coie presents When are Appellate Time Limits Jurisdictional? discussing how in the upcoming term SCTOUS will examine FRAP 4(a)(5), the rule limiting a district court's power to extend the time for filing a notice of appeal. So keep an eye out for Hamer v. Neighborhood Housing Services of Chicago, No. 16-658 (to be argued Oct. 10, 2017).
• Judge Richard Kopf (D.Neb) presents Judging a Book: Kopf Reviews Posner's 'Federal Judiciary'. His conclusion? "[B]uy Judge Posner’s new book. If you read it, you will be less dumb."​​



Not the panel hearing the yoga appeal.

• And then see Yogi's Ex-Atty Contests His 'Brazen' Appeal Of Bias-Suit Win about oral argument yesterday in appeal pending in 2/3 (No. B272374) focused on whether the appeal should be dismissed based on the disentitlement doctrine.

5th DCA wins 2 grants!

JUDICIAL COUNCIL AWARDS GRANTS TO COURT OF APPEAL, FIFTH APPELLATE DISTRICT
In July 2017, the Court of Appeal, Fifth Appellate District in Fresno, California signed contracts with the Judicial Council of California in which funding for the following two grants was awarded as part of the Court Innovations Grant Program ($25 million allocated by the Budget Act of 2016 for the establishment, operation, administration and staffing of trial and appellate court programs and practices that promote innovation, modernization, and efficiency):
(1) Modernize the Transcript Assembly Program; and
(2) Self-Help and Learning Center Website

Modernize the Transcript Assembly Program
A total of $793,000 was awarded to modernize the Transcript Assembly Program (TAP) software currently being used in the majority of trial courts within the Fifth Appellate District, and make this software available statewide to all trial courts for one year (cloud-based). TAP allows electronic submission of the clerk’s transcript to every appellate court in the state, and increased access to the public because they will not need to retrieve multiple boxes of records from the trial court in order to obtain a copy of the record. One year will provide all interested trial and appellate courts the opportunity to realize the benefits gained by producing and utilizing an electronic clerk’s transcript and achieve the savings that will result from automating a fully manual staff process (in some courts) to one that is accomplished by the click of a button. The target date for completion of this project is June 30, 2019.

Self-Help and Learning Center Website
he Self-Help and Learning Center Website grant is a collaboration between the Fourth and Fifth Appellate Districts to design and deploy a statewide website primarily targeting self-represented litigants, attorneys and their staff unfamiliar with the appellate process, as well as the general public. A total of $317,916 was awarded to contract with an information technology and web development vendor to design and help deploy an ADA compliant Self-Help and Learning Center website. The website will not provide legal advice, but will assist users with understanding appellate procedures and rules, accessing and completing court forms and templates for documents to be filed in the appellate courts, and explaining unfamiliar appellate terminology. In addition, the website will lead users to the correct resources and information in response to their questions when filing an appeal or an original proceeding for general civil (including family law and probate). The website will also offer assistance for notices of intent to file writ petitions pursuant to California Rules of Court, rule 8.450. If possible, assistance with guardianship, conservatorship, and mental health appellate filings will also be offered. The learning center will be an additional component to the website, providing a comprehensive, easyto-navigate resource offering education and encouraging learning about the appellate process. Deployment of the website is anticipated by August 30, 2019.

4/1 wins grant!

JUDICIAL COUNCIL AWARDS GRANT FUNDING TO COURT OF APPEAL, FOURTH APPELLATE DISTRICT, DIVISION ONE

In July 2017, the Courts of Appeal for the Fourth Appellate District, Division One in San Diego and the Fifth Appellate District in Fresno entered a contract with the Judicial Council of California to receive funding of a grant awarded as part of the Court Innovations Grant Program, which was established by the Budget Act of 2016 to promote innovation and efficiency in the courts and access to justice by the public. The grant will be used for the development of a statewide, interactive Self-Help and Learning Center Website that will assist self-represented litigants, as well as attorneys and their staffs, proceed through the appellate process, and provide information to the general public about the judicial branch and its role in the American system of governance.

The $317,916 grant will fund the courts' retention of an information technology and web development vendor to design and implement an ADA-compliant Self-Help and Learning Center website accessible throughout the state, including areas that are far from the appellate courts that serve them. The website will not provide legal advice, but will provide information to help users understand the appellate procedures and rules that apply to their cases, as well as appellate terminology with which they may not be familiar. Using interactive technology, the website will also allow users to access and complete court forms and templates for documents to be filed in the appellate courts. The website will also link users to resources and information needed to proceed with, or respond to, an appeal or an original proceeding in general civil cases (including family law and probate), as well as other civil proceedings. The website will provide assistance to parties or attorneys in submitting notices of intent to file writ petitions in juvenile dependency proceedings pursuant to California Rules of Court, rule 8.450. The Learning Center component of the website will incorporate educational resources about the judicial branch and the appellate process, for use by educators and the general public.

Deployment of the website is anticipated to occur by August 30, 2019.

"ABA Slams Efforts To Break Up 9th Circ."

Law360 reports here that "The American Bar Association House of Delegates, convened for the group's annual meeting in New York, voted Monday to formally oppose recent federal legislation aimed at breaking up the Ninth Circuit."

In a voice vote with no noted opposition, the ABA House of Delegates approved Resolution 104, which reaffirmed its long-running opposition to congressional efforts to divide the Ninth Circuit and create a new Twelfth Circuit. The vote comes on the heels of a renewed surge of interest in such a division, with five GOP-backed bills introduced since the start of the year that aim to do just that.

Most of the current proposals to break up the jurisdiction would group California with Guam, Hawaii and the Northern Mariana Islands in its current home, though one proposal would leave California flying solo as all the other states and territories are placed in a new Twelfth Circuit.

Appellate tidbits: See here for a 9th Cir. opinion dismissing a debtors' appeal from a district court's order vacating a bankruptcy court's chapter 132 plan; the order was not final and appealable because it did not finally dispose of a discrete dispute within the bankruptcy case.
And see here for a decision from 2/2 that "conditionally reverses and remands with directions" -- not your usual dismiss/affirm/or reverse disposition.

9th Circuit Judge to go Senior

Today's DJ reports that Judge Richard Tallman will take senior status when he turns 65 on March 3, 2018. This will create a fifth vacancy on the 9th Circuit.

The Recorder's story is With Another Ninth Circuit Opening, Trump's Influence on the Court to Grow
The official press release is here.

Tailoring the Emperor’s New Clothes

That's the title of Justice Hoffstadt's latest DJ article, which begins:

Precedent sometimes rests upon a legal fiction, and persists until a later decision exposes the fiction for what it is. People v. Sanchez, 63 Cal. 4th 665 (2016) exposed as a fiction the long-held position that out-of-court statements admitted to explain the basis for an expert witness’ opinion are not admitted for their truth. But what happens after such a revelation? That is what the California courts are struggling with addressing right now.

9th Cir. program available on YouTube

Monday's OCBA 9th Circuit Dos and Don'ts program, featuring Judges Callahan, Ikuta, and Faber (SDWV) was webcast live and is also available here. And a recap of the program appears in today's DJ article Dos and Don'ts in the 9th Circuit, by the program's moderator Jimmy Azadian and Cory Webster. Some tidbits:

• As Judge Callahan pointed out, poor advocacy does not lose a case. But poor advocacy frustrates judges and their law clerks because it creates more work for the court to get to the right result. Additionally, substandard representation can destroy an attorney’s credibility.

• Brief writing: Act as a teacher and don’t hide the ball. Briefs should be short and crisp, and get right to the heart of the case. The best briefs are authored more as if from a teacher than an advocate. Take the reader by the hand, and lay out the story and the law in an (almost) impartial way.

• FRAP 28(j) letters are for new, not newly discovered, authorities.

• Don’t minimize the role of oral argument in the 9th Circuit. 

Comments on Proposed FRAP?

Proposed Amendments Published for Public Comment - August 2017

The Judicial Conference Advisory Committees on Appellate, Bankruptcy, Criminal, and Evidence Rules have published proposed amendments to their respective rules and forms, and requested that the proposals be circulated to the bench, bar, and public for comment. The proposed amendments, rules committee reports explaining the proposed changes, and instructions on how to submit comments are posted on uscourts.gov. The public comment period ends February 15, 2018.

The proposals seem very minor: The FRAP at issue are Rules 3, 13, 26.1, 28 and 32. For Rules 3 and 13, the gist is to change "mail" to "send" to keep up with our modern electronic age. For Rules 26.1 and 28, the proposal is to rename the "Corporate Disclosure Statement" to just "Disclosure Statement" and to expand who needs to file it (e.g., intervenors, debtors, trustees, crime victims).

{Speaking of intervenors, you can tell real appellate pros (aka geeks) by how they spell that word! In federal cases it's "intervenor" but in California courts it's "intervener."}

Looking for more Federal fun? Check out the ABA's 90-minute MCLE webinar The 2016-17 Roberts Court: A Quiet Term or a Calm Before the Storm? Panelists are Professors Jamal Greene, Ken Starr and Pam Karlan. This webinar promises "profound" insights and an "early read on Justice Gorsuch's impact on the Court."
Note also: The 6th Circuit goes to NextGen e-filing on Monday.
And the 9th Circuit is seeking Appellate Lawyer representatives.

Will the next Cal Supreme Court Justice be...

Today's DJ presents Groups lobby Brown to choose LGBT individual as next state high court justice, reporting that as Justice Werdegar's August 31 retirement date nears, the Governor is being lobbied, and LGBT groups "might be out ahead of other interest groups." Names being bandied about are Justices Humes, Lavin, and Stewart. Also mentioned are UC Davis Law Professor Courtney Joslin, UC Berkeley Law Professor Russell Robinson, Public Counsel's Children's Rights Project Directing Attorney Martha Matthews, and Laura Brill of Kendall Brill & Kelly.

Kondo-izing legal writing?

What do you get if you cross declutterer Marie Kondo with the Bluebook? You get Jack Metzler's short and smart paper, Cleaning Up Quotations, proposing a rule to make quotations more readable in legal writing.

Lawyers use a lot of quotations in their writing. And judges are lawyers who are just as enamored with quotations in their writing as the rest of us. So it often turns out that the best quotation for a proposition is one in which a judge has quoted some other authority. The Bluebook dictates how to cite the original source of quoted material, how to indicate that the quotation contains a quotation, and how to show any alterations to the immediate source or the original source. Given the ubiquity of quotations in legal writing, these rules often mean that good quotes quickly acquire a significant amount of citation baggage that makes it difficult to use them without significantly distracting from the author's point or increasing the author's work for little substantive gain. The paper proposes that legal writers discard all that baggage and adopt a new parenthetical, "(cleaned up)," to tell readers that they have removed extraneous material for readability and guarantee that nothing removed was important.

Cal Supreme Courts dates for 2018

2018 Supreme Court Oral Argument Calendar
The Supreme Court of California has published its Oral Argument Calendar for next year. The calendar highlights the weeks when oral argument will be held in San Francisco, Sacramento, and Los Angeles. It also includes the dates for the court’s weekly conferences and court holidays for 2018.

(Note that the only "Wednesday" conference not set on a Wednesday will be the November "21," 2018, conference, which will be Tuesday, November 20, 2018.)

Beds on Nevada's Pot Shortage, et al.

Beds' latest column in The Recorder is Pot of Gold Redefined in Nevada, about the Silver State's drug problem--not having enough marijuana to satisfy Nevada's demand! Specifically, not having any trucks licensed to deliver it!

Today's DJ features PJ Gilbert's column, titled Fake, which includes a reference to a taxidermed pomeranian.

And Moskovitz on Appeal offers Setting up an appeal--in the trial court, with tips for trial lawyers to preserve the record for appeal, such as: order a court reporter, and make sure that absolutely every phase of trial is reported; object to the other side's evidence, and state all grounds for the objection; and resist objections to your evidence, and if an objection is sustained, then make an offer of proof.

Chem says, "If it aint' broke..."

Law360 runs A Bad Cure For A Nonexistent Problem by Dean Chemerinsky about splitting the 9th Circuit. He says: "whether to split the Ninth Circuit, should be based on what is best for judicial administration and not partisan politics. From this perspective, splitting the Ninth Circuit would entail significant costs, but without any identifiable benefits."

The statistics about Ninth Circuit reversal rates also are misleading. Last term, the Ninth Circuit was reversed in 88 percent of the cases, which seems significant, until one realizes that lower courts were reversed 79 percent of the time in all of the Supreme Court decisions of the term. And it is not clear how splitting the Ninth Circuit will solve this; at best, it might create one circuit that is reversed even more and one that is reversed a bit less.

Nor would splitting the Ninth Circuit decrease the time it takes to decide a case. Disposition rates for cases are not significantly different in the Ninth Circuit compared to other circuits. It is unlikely that splitting the Ninth Circuit would speed up justice; the inefficiencies of splitting the circuit likely would make delays even worse. Delays in case processing are primarily due to vacancies on the Ninth Circuit, not to its size.

In Frisbee Boss, the DJ reports that H&L's Eric Boorstin "purchased a co-ownership stake this year in the Los Angeles Aviators, a professional ultimate Frisbee tam that recently earned a 2017 playoff berth." Huh? This sounds like a column by Beds!

Free Chemerinsky MCLE in San Diego

The San Diego Chapter of the Federal Bar Association is pleased to present: 2017 Supreme Court Case Review Featuring Dean Erwin Chemerinsky.

We are pleased to welcome back the esteemed educator, litigator, and legal scholar Erwin Chemerinsky, who will deliver an analysis of the October 2016-2017 U.S. Supreme Court term. Dean Chemerinsky was the founding Dean of UC Irvine School of Law, where he served as the Raymond Pryke Professor of First Amendment Law. He was recently named Dean of Berkeley law.

Friday, August 11, 2017, 12:00-1:00 pm
COST: FREE
PLACE: James M. Carter and Judith N. Keep United States Courthouse, Jury Room #230, 333 West Broadway, San Diego, CA 92101
MCLE: 1.0 General MCLE Credit

Space is limited, please register by no later than August 7, 2017 at www.fbasd.org
Questions about this event? Email Alex Miller at amiller@cooley.com

Looking for more SD Appellate fun? The Appellate Practice Section of the San Diego County Bar Association is holding a Networking Mixer at Stone Brewing World Bistro & Gardens - Liberty Station on August 17 starting at 5:30.

Then, on August 29 at noon (bring your own lunch), the Section invites you to tour 4/1 and enjoy a Q&A session with Justice Dato.