Thursday, May 5, 2016

More on waiving oral argument

The ABA's Journal of the Litigation Section has published the Spring 2016 issue of Litigation, and it includes some interesting appellate articles. On page 30 is Let's Revamp the Appellate Rules Too, by Martin Siegel, about how inefficient and unnecessary procedures add to the time and cost of an appeal. On page 31 is A Judge Comments by 9th Circuit Judge Barry Silverman on the importance (or really the lack thereof) of oral argument. He concludes:
Image result for you have the right to remain silent"If you've written a good brief, one that's better than the other side's, give serious consideration to affirmatively waiving oral argument even if the court doesn't submit the case on its own. If you're already ahead on paper, all oral argument can do is give the other side a chance to make up for lost ground. Remember, you have the right to remain silent."
On the lighter side, for some fun photos of appellate judges & justices in the Beverly Hills Bar Ass'n Bar Brief, click here (e.g., on page 10 you'll see Gilbert and Manella dancing the can-can, and Reinhardt and Kozinski smiling.)

Wednesday, May 4, 2016

Riverside County Bar Truefiling program May 24

Tuesday05/24/2016Noon to 1:30 PM

Appellate Law Section "Truefiling Training"

Provided by Fourth District Court of Appeal, Division Two
In June 2016, e-filing through ImageSoft's
TrueFiling system will be mandatory for all
attorneys in the Court of Appeal, 4th District,
Div. 2. Attorneys, legal secretaries, paralegals
and any additional office staff involved with
filing eDocuments are welcomed and
 encouraged to attend.

LocationRCBA Building - John Gabbert Gallery
MCLE Credit1.0 hr General
FeeThis training is FREE for all attendees.
For attorneys that would like MCLE credit,
1 hour of general participatory credit will be
given. The cost for MCLE credit is Free for
all RCBA members and $25 for non-members.
Other InfoPlease register by sending an email with your
name, job title, professional affiliation, to
or call 951-682-1015 for reservations.
(RSVP deadline: May 20)

How badly does 4/2 need new justices? Kira Klatchko's President's Message in the current issue of Riverside Lawyer spells it out:
The Riverside-based Fourth District Court of Appeal, Division Two, also has the most acute need for justices of any appellate court in the state. The seven-justice court issued 998 opinions during fiscal year 2014, an average of 142 opinions per justice. During the same period, the ten justice Fourth District Court of Appeal, Division One, based in San Diego, issued 965 opinions, an average of 96.5 opinions per justice, and the eight justice Fourth District Court of Appeal, Division Three, based in Santa Ana, issued 818 opinions, an average of 102.25 opinions per justice. During that period, both San Diego and Santa Ana were accepting overflow cases from Division Two, but not a sufficient number to overcome the significant backlog of fully briefed appeals.

OCBA Appellate Section Program May 5

Thursday, May 5, 2016 12:00 p.m. to 1:30 p.m.
Image result for no margaritas
Yeah, it's Cinco de Mayo...
but just have a taco instead!
Image result for anti margaritaJustice David A. Thompson Court of Appeal, Fourth Appellate District, Division Three Shining a Light on Alcohol and Substance Abuse in the Legal Profession Justice Thompson will discuss the prevalence of substance abuse in the legal profession, his own history with alcohol and substance abuse, and how to identify an alcohol or substance abuse problem. Details here.

Reasons for tentative rulings

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Last week's DJ ran a letter to the editor by attorney John K. Haggerty of Santa Clara captioned Appellate Courts Could Help Out Counsel with Draft Opinions. The letter makes several thoughtful points:

    Image result for give me a hint
  • First, some practitioners are afraid to waive oral argument because doing so "might inadvertently (and incorrectly)" signal to the court that the appeal "is not all that important to our clients and/or the development of the law" -- and perhaps courts can "do more to allay this longstanding and reasonable concern."
  • Second, supplying tentative rulings--in the same way that trial courts do when posting tentative rulings at law and motion hearings--would help the parties and their counsel by (1) helping to decide whether to incur the expense and delay of requesting argument, and (2) being able to address the court's specific concerns at argument.
  • Mr. Haggerty goes on to recount how in at least two published opinions of his, the "court based its decision on grounds that were not raised by" the parties in briefing, which "was very frustrating, wasteful, and unfair." Releasing a pre-argument tentative ruling would have allowed the parties to present "a far more meaningful argument."
For some recent good opening paragraphs in opinions, look here and here.

And on the question "should pro pers get special treatment regarding appellate sanctions?" look here (page 8).

KFF presents UWantMe2KillHim?

The next Kozinski's Favorite Flicks will be May 26 at 7 p.m. at the Chambers Courthouse in Pasadena for a showing of U Want Me 2 Kill Him? Details below. RSVP here.
Uwantmetokillhim2013poster.jpgThis dramatization of actual events tells the story of two British teenagers drawn to the shadowy world of anonymous internet chatrooms.  Popular, handsome Mark (Jamie Blackley) is smitten with his cyber-girlfriend Rachel.  Over the course of their virtual relationship, he befriends her brother John (Toby Regbo)—an awkward, bullied schoolmate of his.  When John breaks the news of Rachel's murder, a devastated Mark turns to another instant-messenger "friend" to avenge her death, with tragic results.
We screened this film at our last KFF in San Francisco, and it was very well received.  We look forward to showing it again, this time with a trio of special guests who brought this fascinating story to the public's attention.  Judy Bachrach published an in-depth article in Vanity Fair about the events and the ensuing prosecution.  As her piece reveals many details in the movie, it's probably best to read it after KFF.  Andrew Douglas directed the film, and Simon Crocker produced it.  All three of our guests will discuss their impressive and varied careers.  And they'll reflect on what it was like to create a movie about a real-life tragedy that strikes a chord with the internet generation.  
Prior to KFF, we'll offer a tour of our historic Richard H. Chambers Courthouse.  If you'd like to participate in the tour, please meet in the first floor lobby just inside the main entrance at 5:45.  The tour will start promptly at 6:00 so you can finish in plenty of time to get food, drink and a good seat.
And yes, apropos of flicks, Happy Star Wars Day!

Tuesday, May 3, 2016

CSC Webcasting + 2d DCA pro tem update + Beds' on Fibersecurity + Gilbert on Mosk

The Supremes begin webcasting today here (story here; Sacto Bee story here).

The following are currently sitting on assignment:

  • Judge Amy D. Hogue of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until May 31, 2016.
  • Judge Michael J. Raphael of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Five until May 31, 2016.
  • Judge Stan Blumenfeld from the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until May 31, 2016. 
Justice Bed's May column in OCBA is now online: Fibersecurity (and The Recorder version is here).

Yesterday's DJ featured Justice Gilbert's column, Chatting with Justice Mosk: "He was Dr. Johnson and I was his Boswell."

The DJ also offered Moskoviz on Appeals: Did I Say 'Law Clerk'?

And for a memorable opening line from Justice Yegan, click here.

Friday, April 29, 2016

DJ profiles Justice Streeter + 3 appellate tips for corporate counsel

Yesterday's DJ profiled 1/4's Justice Jon Streeter, who clerked in the D.C. Circuit, was a Bay Area Civil Litigator for decades at Orrick and Keker, and served the profession as president of BASF (2004) and the State Bar (2011).
Compared to the attention and interactions that come with high-stakes advocacy and high-profile bar leadership, appellate adjudication comes off as monastic to Streeter, who begins his day at 7 a.m. and remains at work for up to 12 hours.
"I was always a very bookish sort of person. I was always happiest in the library or in the study space, problem solving," Streeter said. "I'm happy as a clam doing that." 
He is described as a man of great dignity, intellect and substance; soft-spoken, but "his brain is moving a mile a minute"; hard-working, and even-handed; a creative-thinker who ponders the equities of every case. He urges practitioners to be meticulous and judicious in briefing and oral argument. This means throwing out 8 of ten issues that could have been briefed; effective briefs convey information in a manner that is easy for the reader to digest; "organization, transitions and accuracy are key." At argument, he advises lawyers to answer questions directly and to be wiling to admit possible weaknesses to enhance one's reputation.

Justice Streeter
"When we ask questions, we are asking them for a purpose. They may be questions that sound hostile, but in fact are just probing or testing. It may mask the reality that my judgment is the same as the advocate's judgment, but I'm just testing to see if: Can what I perceive to be a weakness be overcome in a credible way?"

Yesterday's Corporate Counsel featured 3 Advanced Appellate Tips Every In-House Litigation Counsel Should Know, by Ben Feuer:
1. Consider adding appellate rights to arbitration agreements.
2. Identify issues with important appellate implications at the outset of litigation.
3. Think carefully about seeking interlocutory or writ review of non-final orders because a weak effort could hurt your chances for the later appeal.

Congrats to 4/1's APJ: Justice Judith McConnell Honored for Work in Civic Education

A brief that actually uses Klingon phrases? Is that for real? Uh, yeah. We've got that right here.

Brawling Super Lawyer?

PJ Gilbert's widely reported anti-SLAPP opinion (see, e.g., 'Super Lawyer' Can't Duck Defamation Suit) from Wednesday begins like this:
Image result for rodney kingThe parties in this case are neighbors. Appellants ignored Rodney King's famous entreaty. Instead of getting along, they initiated events resulting in a brawl with respondents.
As if that great first line isn't enough, footnote 2 reads:
Unfortunately, this opinion contains an abundance of obscene language. Reader discretion advised; unsuitable for precocious children of reading age.

2d District to destroy records in old appeals:
All civil and juvenile cases numbered up to B199999, with a disposition date prior to January 1, 2007 and all criminal cases numbered up to B099999, with a disposition date prior to January 1, 1997.
Anyone who knows of a reason why any of the records listed should be retained, whether for historical or other reasons, should notify Joseph Lane, Clerk/Executive Officer of the Court. The reasons for retention should be sent in writing by June 30, 2016

Monday, April 25, 2016

Awards for the Chief + Gilbert performs for African wells

Chief Justice Recognized for Public Service

Distinguished Judicial Service Award
Chief Justice of California Tani G. Cantil-Sakauye is receiving the 2016 Brody Distinguished Judicial Service award at Maine's Colby College today. The award honors the work of a former Maine U.S. District Court judge who led an exemplary career as a lawyer, judge, and civic leader.
The award--sponsored by the college's Goldfarb Center for Public Affairs and Civic Engagement--recognizes the Chief Justice for her more than 20 years on California appellate and trial courts. The center noted the Chief Justice’s work with judges and lawyers to successfully restore funding and institute reform in the court system. It also recognized her leadership in the development of several outreach programs aimed at engaging youth in civic learning and democracy.
Legal Impact Award
On October 6, the Chief Justice will also receive the Legal Impact Award from Advancing Justice – LA. The award is presented to an individual who has "fought injustice, faced discrimination or challenged unconstitutional acts, through lawsuits or legislation that benefit the Asian American, Native Hawaiian, and Pacific Islander (AANHPI) communities, and protect the rights of all Americans." The Chief Justice is being recognized for ensuring the just treatment for all under the law and creating awareness of legal rights. Advancing Justice – LA is the nation’s largest legal services and civil rights organization focused on serving, empowering and advocating on behalf of AANHPI communities.

Image result for african well
More close to home, PJ Gilbert will be performing with a group of lawyers and a former court reporter in Encino on May 1 from 3 to 6 p.m. in "An Afternoon of Jazz."
Details here.

And speaking of 2/6, that court will be hosting students from Hueneme High School as part of the ACE program on May 12.

So this decision here today mentions Pittsburgh, but it seems more likely that what was meant was Pittsburg.

Friday, April 22, 2016

J. McIntyre to retire & other hot appellate news

Judith McConnell, Administrative Presiding JusticeAPJ McConnell's presentation at the SDCBA program today (which was webcast) stated that Justice McIntyre will retire on June 30, the same date that Justice Rylaarsdam also will retire. And 4/1's Managing Attorney, Kim Stewart, will be retiring.

Other news: 4/1 is working on getting  better microphones so that oral argument recordings will improve. The Supremes will be hearing argument in San Diego on September 28 (in conjunction with the State Bar's Annual Meeting in San Diego). The court is looking for volunteer lawyers to work with high school students who will be attending. Panel attorneys will be getting a $10/hour raise. Felony appeals are up; civil appellate filings are flat. The median time in 4/1 from notice of appeal to decision is 467 days. E-filing is here & coming: 4/2 goes to e-filing in June; then 4/3 in August; then the 2d DCA by the end of the year; and finally the Supremes by June of 2017. The court also intends to eventually make actual documents available online. The Supremes will be webcasting arguments; the 5th DCA will be next; and then the 4th DCA.

4/2 cases are still being sent to 4/1 and 4/3. 4/2's PJ selects the cases (though 4/1 prefers not to take the big ones; but 4/3 is ok with jumbos).Last year, 215 cases were transferred; this year, 48 cases have been transferred so far (a half-half mix of civil and criminal cases). Also discussed was the potential impact on the Court of Appeal if there's a change to the death penalty. 4/1 has had Judge Ron Prager as a pro tem since September. 4/1 also sat at El Centro High School earlier this week. (The 3d DCA is hearing two cases at a local high school too, details here.)

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Image result for oscarJudge McKeown reported that all's well and calm at the Ninth. (Judge Wallace was at the program too.) Filings are down; the court is hopeful that Judge Koh will get a hearing soon. Judges Silverman and Clifton will take senior status this year. Judge McKeown also discussed how snippets of an oral argument used in the award-winning film Citizen Four accounts for why she (and Judges Pregerson and Hawkins) have IMDB pages! Sadly, the judges were not invited to the Academy Awards.

In the practice tips/pet peeves category: Using different fonts in briefs "makes my brain go squiggly"; good headings are really important; block quotes are actually ok when they are right on point (and better than hiding a key quote in a parenthetical).

Big thanks to the SDCBA Appellate Section for hosting this great event, and especially for webcasting it!