Tuesday, April 22, 2014

Open PJ Spots in 2/1 AND 2/3?

The JNE Commission is circulating a questionnaire to evaluate Justice Rothschild "for Presiding Justice, Second District Court of Appeal, Divisions One and Three."
Division One is missing a PJ since Justice Mallano retired earlier this year, so that makes sense; but Division Three has a vibrant PJ in Joan Dempsey Klein.

Monday, April 21, 2014

Another name in the hopper for the 2d DCA

Today's MetNews reports Ventura Judge Tari Cody Being Considered for Court of Appeal. Presumably that would be for the spot on 2/6. "The MetNews previously reported that Los Angeles Superior Court Judges John Segal, Luis Lavin, Helen Bendix, Brian Hoffstadt, Lee Edmon, and Sanjay Kumar; U.S. District Judge Audrey Collins; and Southwestern Law School professor Christopher Cameron were under consideration for the court. There is a presiding justice vacancy in the district’s Div. One and there are associate justice slots open in Divs. Two, Four, Five, Six, and Seven."

Also: Don't miss Law360's Female Powerbrokers Q&A: Horvitz & Levy's Lisa Perrochet, where Sugar Puddin' discusses sexism and her admiration for her father and Justice Kennard.

More analogies: How to attract a Supreme Court's attention

On Friday, Law360 Appellate offered 5 Tips For Winning Over The Texas Supreme Court, a report from a program presented to the appellate sections of the Texas State Bar and Austin Bar Ass'n. Not surprisingly, the Texas Supreme Court is overworked and would appreciate well-written petitions and briefs that help the justice save time and understand the key questions quickly. The five tips apply equally in California or any appellate court, more or less. Here are some highlights:

Get to the Point - The summary of the argument section (aka "introduction") is very valuable: If written properly and concisely it can be decisive.

Amicus Should Get Involved Sooner - The court welcomes broader industry perspectives, bigger picture policy arguments, and other jurisdiction approaches. But "me too" briefs are not helpful.

Use the Word Count to Your Advantage - Large font sizes are helpful, especially since the justices often read on iPads and laptops. Consider using graphics, pictures, or diagrams, which can be very helpful to understand a point.

Don't Bury the Court with Extra Filings - The court doesn't like additional briefs, sur-replies, or post-submission briefs, which don't actually add anything useful.

Tailor Your Issues - A short issue of statement can be more effective that the Garner "deep issue" statement.

(Apart from the general applicability of the justices' comments, there actually IS a SoCal appellate connection here: One of the speakers, Justice Jeff Boyd, attended Pepperdine Law School. Ok, maybe more than merely "attended": he was EIC of the law review and won various moot court competitions and writing awards.)

Friday, April 18, 2014

Oral argument tips

Earlier this week Law360 Appellate featured an article with the unnecessary vulgar title How to Kick Ass at Federal Circuit Oral Arguments. The article noted that the Federal Circuit Court of Appeals features highly prepared judges who ask tough questions, thus making it imperative for oral advocates to show up with their best game. To be sure, the Federal Circuit has very limited jurisdiction (e.g., appeals involving patents and trademarks, international trade, takings claims against the federal government, and government contracts), so the judges presumably have specialized knowledge in these areas. That said, all of the special advice offered in the article seems equally relevant to any appellate argument.

1. Know the Record Cold - have a cheat sheet handy with specific record references to key parts of the record.
2. Moot it Out - brainstorm questions and practice answering out loud.
3. Distill the Argument; Prioritize Key Points - know how you want to start and important points you must make before you finish.
4. Answer directly - don't deflect - the Judges' Questions.
5. Connect with the Panel - show respect for the judges.

United States Court of Appeals for the Federal Circuit

Also, speaking of self-defense, see yesterday's Eslinger v. United Studios of Self-Defense, for an interesting tale of appealability that ends up with a dismissal.
Finally, on the topic of lightning speed, reader Kent Quian points out this rare find -- a 9th Cir. published opinion and dissent issued a mere month after oral argument.

Tuesday, April 15, 2014

9th Cir. Judge McKeown has technophilia

Today's Recorder profiles San Diego-based 9th Circuit Judge McKeown, here, with an emphasis on her technophilia. Once upon a time she founded Perkins Coie's IP practice, and now apparently uses Fitbit, Uber, Viber, and other apps, and loves reading about technology.

Today's MetNews reports that "Los Angeles Superior Court Judges John L. Segal and Luis A. Lavin are under consideration by Gov. Jerry Brown for appointment to this district’s Court of Appeal." "The MetNews previously reported that Los Angeles Superior Court Judges Helen Bendix, Brian Hoffstadt, Lee Edmon, and Sanjay Kumar; U.S. District Judge Audrey Collins; and Southwestern Law School professor Christopher Cameron were under consideration for the court. There is a presiding justice vacancy in the district’s Div. One and there are associate justice slots open in Divs. Two, Four, Five, Six, and Seven."
Also, on Monday the MetNews had an article titled Senate Puts Off Vote on Ninth Circuit Nominee Friedland.

Friday's DJ (4/11/14) also had an article, Retired justice to oversee prison capacity compliance: Elwood Lui will have the power to release inmates if state fails to address crowding.
Photo of E. Lui

Interested in probate appeals, or just questions of appealability generally? Then check out yesterday's Kalenian v. Insen.

Monday, April 14, 2014

2d DCA pro tem update

The following are currently sitting on assignment:
  • Judge Rita Miller of the Los Angeles Superior Court, will be sitting Pro-Tem in Division One until May 31, 2014
  • Judge Edward A. Ferns of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Two until May 31, 2014
  • Judge Lee Edmon of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Four until May 31, 2014
  • Retired Judge Michael Mink will be sitting Pro-Tem in Division Five until May 31, 2014
  • Judge Earle Jeffrey Burke of the San Luis Obispo Superior Court, will be sitting Pro-Tem in Division Six beginning April 1, 2014 until May 31, 2014
  • Judge John Segal of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until May 31, 2014
  • Judge Russell S. Kussman of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Eight until May 31, 2014

Sunday, April 13, 2014

2014 Traynor California Appellate Moot Court Competition

This weekend UCLA hosted the 45th Annual Roger J. Traynor California Appellate Moot Court Competition (sponsored by CEB, the Witkin Legal Institute, and the Rutter Group). [Need a refresher on Roger Traynor, one of California's (and America's) greatest legal minds? Click here.]

Twelve California law schools participated. Judges consisted primarily of Southern California appellate practitioners with the final round judged by Justices Epstein, Perluss and Perren.
And the winners were: McGeorge over Berkeley in the finals.
U.C. Davis won for best brief (Golden Gate as runner up) and for best combined oral/briefing score (McGeorge as runner up). So a very strong showing by the Northern California schools. (Oddly, many Southern California law schools didn't even participate. C'mon USC, Pepperdine, Southwestern -- where were you?)

Much can be said in criticizing moot court exercises versus real appellate practice. We all remember this classic, In Praise of Moot Court, Not!, right?
So rather than head in that direction, let's focus on how moot court actually might be helpful for practitioners today. Below are the Traynor Competition's "Grading Guidelines for Oral Argument." They seem equally applicable, and worth bearing in mind, for any court appearance by any advocate, no matter how experienced:

I.  Opening:                            
·        Does the advocate go directly to the heart of the appeal or waste time reciting unnecessary matters?
·        Does the advocate quickly summarize the party's basic position?
·        Does the tone and manner of presentation immediately give the court confidence that the advocate has a command over the case?
·        Is there an ease of presentation that engages the court and makes the justices eager to enter into a dialogue with the advocate?
·        Does the opening make the court believe that the advocate will be candid and address the difficulties of the problem, rather than overzealous in support of a position?
·        Does the advocate read from a prepared statement, use notes wisely, or appear to speak spontaneously, reflecting command of the situation?
·        Does the respondent's opening highlight weaknesses in the appellant's presentation or start from a prepared script as if the appellant had not argued?

II.  Presentation of the Substantive Arguments
·        Does the argument have a theme?
·        Does the advocate make reasoned arguments or state conclusions without analysis?
·        Does the advocate focus on the important questions raised by the case or become mired in unnecessary detail?
·        Is the argument well organized?
·        Does the advocate understand the legal issues?
·        Does the advocate discuss the facts in the decisions in an appropriate manner or pay too much attention to immaterial details?
·        Is the advocate familiar with the record?
·        Does the advocate understand what parts of the record are most helpful to his or her client's position?
·        How well does the advocate handle the unfavorable parts of the record?
·        Does the advocate know how to move on to a different subject?
·        Does the advocate make good use of notes?
·        Does the argument leave the court wishing for more time to explore issues further with an engaging advocate, or leave the court grateful that the argument is over?

III. Responding to Questions from the Court on the Substantive Arguments 
·        Is the advocate prepared for questions or surprised and unable to answer?
·        Does the advocate respond directly and immediately to each question?
·        Does the advocate make concessions when necessary and then explain why the concession is not fatal?
·        Does the advocate exhibit flexibility and use the questions to advance his or her client's position?
·        Does the advocate get rattled by questions or utilize them as occasions for entering dialogue?
·        Does the advocate know when to stop?
·        How well does the advocate move back to what he or she wants to say?
·        What does the advocate do if he or she does not understand the question?  

IV.  Demeanor and Closing/Rebuttal
·        Is the advocate's presentation smooth and confident, or hesitant and fumbling?
·        Does the advocate appear poised and ready to enter dialogue or nervous, unprepared, and unwilling to enter dialogue?
·        Do the advocate's voice and manner of presentation engage the listener?
·        Does the advocate vary his or her inflection and tone appropriately or is the presentation dull and uninspiring?
·        Is the advocate overly rhetorical or sarcastic?
·        What does the advocate's body language indicate?
·        Does the advocate make, and keep, eye contact with the justices as appropriate?
·        Is the advocate respectful of the court?
·        Is the advocate dressed appropriately?
·        Does the advocate make good use of what transpired during the argument to create an effective closing or rely on a prepared statement?
·        Does the argument end on a good note or just fade away?
·        Does the appellant use rebuttal effectively by capitalizing on weaknesses in the respondent's presentation and addressing any helpful questions raised by the court?

Friday, April 11, 2014

"But he's standing right there in court!" does not trigger the time to appeal

Looking for a primer on the time to appeal? Look no further than today's published opinion in Marriage of Lin, which begins:
There are no unique jurisdictional time limits for appeals from domestic violence restraining orders. As with other appeals, there is a 60-day time limit for restraining orders which are properly served, either through a notice of entry of judgment, or through service by the clerk or party of a file-stamped copy of the order. (Cal. Rules of Court, rule 8.104(a).) Otherwise, the outside 180-day filing limit applies.
Because the court record does not facially establish service of the domestic violence restraining order upon the restrained party, we apply the outside 180-day limit to his appeal. While the restrained party's personal presence in the courtroom at the time the restraining order was issued may make it easier to enforce the restraining order against him, it does not shorten the time limits for filing a notice of appeal.

[4/18/14 Update: Today's DJ has an article about Lin: Ruling provides guidance on notices of appeal, by GMSR's Alana Rotter.]

Also: Posttrial motions are tricky. How tricky? Try this one for size: Jarman v. HCR Manor. (Don't like the word "posttrial"? That's Yellowbook style, so learn to love it.)

DJ profiles Justice Klein.... 's son....

Today's DJ profiles Judges Marc Dempsey Gross, an LASC judge who isn't the first in his family to be appointed to the bench by Governor Brown...
That would be his mother, 2/3's PJ Joan Dempsey Klein.

Don't make me have to reverse you, young man!

Odd coincidence? Today 2/3 issues an opinion titled Drescher v. Mark P. Gross...

In other 2d DCA news, the next ACE program is 4/15.

Also, don't miss Obama Picks Joining More Moderate Ninth Circuit in today's Recorder.

Wednesday, April 9, 2014

LACBA to Honor 9th Cir. Judge Arthur Alarcon

"LACBA’s Outstanding Jurist Award is presented annually to a current or past member of the federal or state judiciary in Los Angeles County who has made significant contributions from the bench through judicial ability and experience, temperament and demeanor, knowledge of the law, improvement or education of the legal community, the practice of law, and the community at large." This year's award goes to ... the Honorable Arthur L. Alarc√≥n of the United States Court of Appeals for the Ninth Circuit.

The lunch is May 7 at the Biltmore in downtown LA and former California Attorney General John Van de Kamp will be on the program.
Details here.

Curious about past winners? Click here to see a list of legal luminaries, many from the appellate realm.

"This is an appeal about nothing."

A catchy opening line from this unpublished decision today (WhyADuck Productions v. Block). Probably a sentiment many justices feel regularly...

Monday, April 7, 2014

9th Circuit lunch program on Thursday

 The LACBA Appellate Courts Section, OCBA Appellate Law Section, Riverside County Appellate Law Section, and State Bar Committee on Appellate Courts are co-sponsoring an event you won't want to miss:
Lunch at the Ninth Circuit:
Tips from Judges on Getting Your Just Desserts

Presented by Ninth Circuit Judges Morgan Christen, Andrew Hurwitz, and Randy Smith.

Details here.

Hath not a lawyer Bardic interests?

Well, most appellate lawyers do, and thus may be interested in an event noted in today's MetNews, Lawyers, Retired Jurist to Ponder Shakespearean Trial Scene:
Actor Richard Dreyfuss will present the ‘pound of flesh’ trial scene from William Shakespeare’s “The Merchant of Venice” on April 23 at 7 p.m. at Patriotic Hall, located at 2615 South Grand Avenue, Los Angeles, CA 90007. The event is co-sponsored by the Los Angeles Chapter of the Federal Bar Association and American Legion Post 8.
The post-reading discussion will feature retired U.S. District Judge A. Howard Matz; Rep. Adam Schiff, D-Burbank, who was a federal prosecutor before entering politics; Federal Public Defender Sean Kennedy, and Dr. Josh Holo, dean of Hebrew Union College. The panel discussion will be moderated by Dr. Susan Tiefenbrun of Thomas Jefferson School of Law.
Click here to get tickets (1 hour of MCLE provided).
Sounds like a great show.
"We're going to need a bigger stage..."

Settlement does not equal dismissal of appeal

Typically when a case settles on appeal, the appeal gets dismissed. But not always, and especially not necessarily when the settlement comes late in the process.
Reader Jeffrey Lewis points out footnote 1 in Bock v. Hansen (1DCA2), a published opinion from last week:
This case was argued on January 22, 2014, and submitted that day. Today, April 2, 2014, the day the opinion is filed, the clerk’s office received a letter from counsel advising that the parties have settled and enclosing a stipulation for dismissal of the appeal. We do not have to accept such stipulation. (See Cal. Rules of Court, rule 8.244(c)(2).) And we do not, especially in light of the issues presented.
So what does CRC 8.244(c)(2) say? "If the case settles after the appellant receives a notice setting oral argument or a prehearing conference, the appellant must also immediately notify the Court of Appeal of the settlement by telephone or other expeditious method." It appears from the way the footnote is written that appellant's counsel did not follow this rule. Given the timing, it may not have mattered. But even so, be sure to pick up the phone and alert the court right away if your case settles after you have an oral argument date.
[Update: Electronic filings reveal that the parties settled the case the night before and promptly alerted the Court of Appeal the next morning.]

Today's DJ has PJ Gilbert's latest column, Cry Me a River, about the US Supreme Court's opinions in Citizens United and McCutcheon v. FEC: "I do not speculate about the justices' subconscious psychological motivation, nor do I question their integrity. I question their reasoning."

Friday, April 4, 2014

New 9th Cir. camera guidelines

Here's the 9th Circuit's latest on cameras in the courtroom:

Court Amends Camera Guidelines
The Ninth Circuit Court of Appeals has issued new guidelines for media camera coverage of court proceedings.  The new guidelines will take effect on April 7, 2014, and apply to matters heard in the Ninth Circuit courthouses in Pasadena, San Francisco, Portland and Seattle, as well as other venues in which the court may sit.

Of particular note is a change to when a request for camera coverage must be made.  The new guidelines require requests to be received by the court at least two business days prior to the proceeding for which coverage is requested.  The advance notice provides time for the panel to consider the request and alerts court staff to the possibility of media coverage.  The old guidelines required advance notice of three business days, so media will now have an additional day in which to file a request.  Media organizations are advised, however, that the court intends to adhere strictly to the two business-day advance notice requirement.  Failure to meet the requirement may result in denial of the request.

In calculating when a request must be filed, a media organization should allow two full business days.  For example, to cover a proceeding on a Wednesday, the request must be received the Friday before, with Monday and Tuesday constituting the two business days.

A media organization undecided about covering a proceeding, either on its own initiative or as part of a pool, should consider the timely filing of a request.  If granted, camera access to the courtroom is assured.  A subsequent decision not to cover the case will not negatively affect the court nor the pool provider.

Another change of note is that media can now make requests electronically, using a form-fillable document available online at: http://www.ca9.uscourts.gov/news_media/.  The court also will continue to accept faxed requests.

The Ninth Circuit Court of Appeals has allowed media camera coverage for more than 20 years.  To date, appellate panels have granted nearly 400 media requests for camera coverage.  More recently, the court has begun live audio and video streaming of cases.  Media use of the streaming content is permissible.  More information about video streaming will be forthcoming.

Media should direct questions to the court's Public Information Office, (415) 355-8800.

Thursday, April 3, 2014

Historical LA / Eminent Domain post

This shouldn't be too much of a stretch for SCAN readers: Appellate-types like libraries (participation in last night's event for Croskey, J., should establish that), and  probably have a penchant for history, certainly legal history. So here's a story on the LA Public Library's blog that is probably of interest:
Here Lies Liberty: Steven Anthony and his fight against eminent domain
(And see Fight Against Phony Eminent Domain Revisited on Gideon's Trumpet, which provides the citation County of Los Angeles v. Anthony (1964) 224 Cal.App.2d 103.)

Parking at the Bowl is always a problem, right?

Big Night for Walt Croskey

justice h walter croskey
Last night the LA Law Library honored Justice H. Walter Croskey with its Beacon of Justice Award.
Information on previous winners -- mostly 2d District Justices -- is here.

Wednesday, April 2, 2014

Welcome to "Not Just Another Appellate Blog"

OC Appellate Specialist John Dodd has launched Not Just Another Appellate Blog --
"a blog focusing on developments in California appellate law, and parental rights cases in particular, as well as, frankly, anything else [he might] find interesting."
The first four posts are up, so check them out!
John L. Dodd & Associates

Law360 profile of rara avis Judge Reinhardt

Law360 features The Lion in Winter: Judge Stephen Reinhardt, calling him the "reigning liberal lion of the Ninth Circuit." It goes to characterize him as "politically divisive," and an "unapologetic throwback to the socially progressive days of the Warren Court." Other comments: "an erudite champion on liberal thought in an era of rightward-tilting judicial moderates," "a leftist partisan who adorns the sleeves of his judge's robes with an unseemly bleeding heart." And that's all just from the first two sentences! Chief Judge Kozinski "has reportedly referred to Reinhardt as a 'mastodon'" and the article goes on from there to present many other intriguing quotes and descriptions.

Tuesday, April 1, 2014

LACBA ACS Annual Supreme Court lunch

The Supremes are in LA this week, so....
that means that the LACBA Appellate Courts Section Annual Lunch is tomorrow at the Doubletree by Hilton in downtown LA. Here's the rundown:

Honored guests will include justices of the Supreme Court, the Court of Appeal, and the Appellate Division of Los Angeles Superior Court.

Guest Speaker
Professor Rick Hasen
Chancellor's Professor of Law, UC Irvine School of Law
Professor Hasen will speak on "Abuse of Discretion?
The U.S. Supreme Court's Troubling Use of Evidence in Election Law Cases"

[***Update*** How perfectly timely, given the US Supreme Court's issuance of McCutcheon v. Federal Election Commission that very morning!!!]

Pamela E. Dunn Award
The Pamela E. Dunn Appellate Justice Award will be presented to
Robin Meadow, Esq.

Associate Justice Joyce L. Kennard will be honored on her retirement.
Supreme Court Image

And on the topic of the Supremes,
see Former chief justice’s book packs surprising plot twists