Judge O'Scannlain to take senior status

SAN FRANCISCO – Circuit Judge Diarmuid F. O’Scannlain of the United States Court of Appeals for the Ninth Circuit notified President Barack Obama today that he will assume senior status on December 31, 2016. The notification occurred on the 30th anniversary of Judge O’Scannlain’s appointment to the court by President Ronald Reagan.

Among Oregonians to have sat on the Ninth Circuit bench, Judge O’Scannlain has the longest tenure of active service since Judge William Gilbert, who was appointed in 1892 by President Benjamin Harrison. In taking senior status, Judge O’Scannlain,79, will retain his chambers in Portland’s Pioneer Courthouse, but with decreased caseload and travel burdens. The next president will nominate a successor to Judge O’Scannlain’s seat on the Ninth Circuit.


Press release here.

Supreme Appearances in SoCal

The 34th Annual Red Mass and hosted reception at the Cathedral of Our Lady of the Angels will be November 9 at 5:30 p.m. Last year Justice Carol Corrigan spoke; this year it will be Chief Justice Tani Cantil-Sakauye.

The 2016 Institute forCorporate Counsel will be held on Wednesday, December 7, at The California Club in downtown Los Angeles. Register online here
Click here for a preview of this year's speakers and topics -- including Cal Supreme Court Justice Leondra Kruger.

3d DCA to convene at UC Davis

SACRAMENTO—Administrative Presiding Justice Vance W. Raye announced that as part of its award-winning community outreach program, the Court of Appeal, Third Appellate District, will hear oral argument at UC Davis School of Law in Yolo County beginning at 9:30 a.m. on Wednesday, October 26, 2016.
Since 2000, the Third Appellate District has held oral argument sessions in 26 high schools and one law school in 20 counties of its district.
Dean Kevin R. Johnson has arranged for close to 120 students from UC Davis School of Law to attend. Oral argument will begin at 9:30 a.m. and will be heard in King Hall, 400 Mrak Hall Drive, Davis (map). All interested members of the public, attorneys, and judges are welcome to attend. Those who attend will be required to go through security screening, so an early arrival is advisable.
Details here.

Beds withdraws offer to serve on SCOTUS

Beds' latest column -- Justice in the Asteroid Belt -- doesn't disappoint (of course).

CAAL's "Appellate Issues" Now Online

Click here for the Summer Edition (Sept. 2016) of Appellate Issues, the publication of the ABA's Council of Appellate Lawyers.

IN THIS ISSUE
Please Stop Strangling the Constitution
By David J. Perlman

Preserving the Judiciary’s Legitimacy in an Increasingly Polarized America
By Nolan B. Tully and Vishal H. Shah

Editor’s Note
By David J. Perlman

Judge Garland, the Rule of Law, and the Elephant in the Room
By Conor Dugan

Voted Most Likely to be the Subject of Proposed Constitutional Amendments: The Electoral College
By Nancy M. Olson

The Riddle of Judicial Review
By Travis Ramey

To Change for the Better: a Primer
By Wendy McGuire Coates

Does the First Amendment Protect Elected Officials When They Speak in Connection with their
Official Duties?
By Ellie Neiberger

Judicial Review and Five Million Acres: an Appellate Tale
By Steve Emmert

In Unusual Term, Big Year for Amicus Curiae at the Supreme Court

The NLJ presents its annual report on SCOTUS amicus briefs here, examining the 863 amicus briefs filed in more than 90% of the merits cases. The average number of amicus briefs per argued case was 13. Of course this statistic is skewed by cases like Fisher (85 amicus briefs) and Whole Woman's Health (82 amicus briefs). "To put these totals in historical perspective, Brown v. Board of Education garnered only six amicus briefs, and Roe v. Wade had only 23."  "20 percent of all amicus briefs submitted this term were filed in cases decided without signed opinions."

The previous five terms have routinely set records for the largest number of briefs in a single (or consolidated) case. In 2011-12, amici filed 136 briefs in the consolidated challenges to the Affordable Care Act (Sebelius), breaking the previous record of 107 briefs in the 2003 affirmative action cases (Gratz and Grutter). In 2012-13, amici filed 156 briefs in the marriage-equality cases (Windsor and Perry). In 2013-14, there was a dip with 82 amicus briefs in the challenge to the Affordable Care Act’s contraception mandate (Hobby Lobby). The 2014-15 term was back in the triple digits with 147 amicus briefs in the latest round of consolidated marriage-equality cases (Obergefell).

Scholars Say Civic-Minded Approach Makes For Better Attorneys

Law360 reports here: "The notion of a lawyer being an amoral 'hired gun' needs to be set aside, according to a Monday report by legal scholars, and more focus should be placed on a lawyer’s role as 'civic teacher,' which will in turn enhance their work for public good as well as their business.

In “Being Good Lawyers: A Relational Approach to Law Practice,” a paper written by Eli Wald, a law professor at the University of Denver, and Russell G. Pearce, a law professor at Fordham University, the attorneys define a law practice as one that should not be seen as merely a business or profession, but one that is inextricable from public service.  

Rejecting Voodoo Science in the Courtroom

That's the title of today's Wall Street Journal commentary here by Judge Kozinski, who was a senior adviser to the PCAST report, along with the subtitle "The U.S. has relied on flawed forensic-evidence techniques for decades, falsely convicting many."
The piece begins:

The White House will release a report Tuesday that will fundamentally change the way many criminal trials are conducted. The new study from the President’s Council of Advisors on Science and Technology (PCAST) examines the scientific validity of forensic-evidence techniques—DNA, fingerprint, bitemark, firearm, footwear and hair analysis. It concludes that virtually all of these methods are flawed, some irredeemably so.

Other key points include:

• "Only the most basic form of DNA analysis is scientifically reliable"
• "Bitemark analysis is about as reliable as astrology."

The piece concludes:

Among the more than 2.2 million inmates in U.S. prisons and jails, countless may have been convicted using unreliable or fabricated forensic science. The U.S. has an abiding and unfulfilled moral obligation to free citizens who were imprisoned by such questionable means. If your son or daughter, sibling or cousin, best friend or spouse, was the victim of voodoo science, you would expect no less.

2d DCA pro tem update

The following are currently sitting on assignment:

• Judge Allan Goodman (Retired) of the Los Angeles Superior court, will be sitting Pro-Tem in Division Two beginning September 26, 2016 until November 30, 2016.
• Judge Maria E. Stratton of the Los Angeles Superior court, will be sitting Pro-Tem in Division Three until September 30, 2016.
• Judge Sanjay T. Kumar of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Five until November 20, 2016.
• Judge Sherilyn P. Garnett of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until September 30, 2016.
• Judge Virginia Keeny of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven beginning October 1, 2016 until November 30, 2016.

For an article about an interesting Sixth Circuit dissenting opinion, see For This Judge, the Civil Rights Movement Isn't History. (Look at pages 33-43 of the dissent.)

Ninth Circuit Judge Cliff Wallace will receive the 2016 American Inns of Court Award at SCOTUS in November. Details here.

Voluntary e-filing starts today in 4/3

Pursuant to Division Three's Miscellaneous Order #2016-1, mandatory E-Filing under the new rule will take effect September 26, 2016, although parties may utilize E-Filing on a voluntary basis beginning September 19, 2016.  Local Rule 5 had previously been adopted in Divisions One and Two on April 11, 2016 and June 13, respectively.

Also, over the summer, 4/1 updated it's basic guide and brochure:

Division One of the Fourth District Court of Appeal has updated The California Court of Appeal Step by Step, Civil Appellate Practices and Procedures for the Self-Represented in the Fourth Appellate District Division One and the Basic Appellate Procedures brochure to reflect mandatory electronic filing.

DJ interviews the Chief

Today's lead story in the DJ is Chief Justice Worries What Might Be Lost In Effort to Split State Bar, in which the DJ's Editor David Houston interviews the Chief about "the bar's current problems" and "also reflected on lessons she learned in 5 1/2 years as chief."

In Unanimously Wrong, Dean Chemerinsky explains why the "Supreme Court's decision in McDonnell v. United States will make it much harder for the government to prosecute and convict those who misuse their official power for their personal gain."

John Hueston presents The Art of the Opening Statement. David Balabanian presents Trust Me, about gaining and securing the trust of clients.

Myron Moskovitz offers Excellence is Making The Most of What You Have to Work With, about how "No matter how well written it is, an appellate brief isn't 'great' unless it makes great use of the record." When reviewing a record, look for the facts you need for the story, procedural facts you need for the litigation history, look for facts that make your side look good and the other side look bad, look for facts that make the trial judge look good or bad (depending on which side you're on), and, finally, look for "gems": Snippets from the record to quote verbatim.

Chief wins Legal Impact Award

Asian Americans Advancing Justice (Los Angeles) will be honoring Chief Justice Cantil-Sakauye with its Legal Impact Award at its 33rd Anniversary Dinner on October 6 at the Bonaventure. More info here.


See also Koh Nomination Sent to Full Senate in Divided Vote, which reports that the Senate Judiciary Committee voted (13-7) to approve Judge Koh to the Ninth.