Wednesday, August 24, 2016

The Recorder to go 100% digital in September

In News about the News:
The Recorder's last print issue will be Sept. 26. After that, it's online only! Details here.
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1. How is The Recorder being reinvented?
The Recorder will expand our news and enterprise coverage through our daily digital offering and, as a result, we will no longer produce a weekly print newspaper. Monday, September 26 will be the last weekly print edition of The Recorder.

2. What value does this product reinvention provide to The Recorder customers?
With 85 percent of our readers already subscribed to our digital platforms, we are preparing to meet their needs on these channels by producing more news, more frequently. As a result, we will become a more timely and nimble news source, providing more breaking news and more in-depth reporting on large-scale issues affecting the California legal community.
3. When will the reinvented Recorder launch?
The digital-only Recorder will launch on Monday, October 3, 2016.

Monday, August 22, 2016

Dissentals now published

by Cantil-Sakauye, C. J.
The court, recently having resumed issuing, from time to time, statements by one or more justices dissenting from the denial of a petition for review, has adopted a policy that such statements, when they pertain to an appellate court opinion that has been published in the Official Reports, will also be published, appended to the original appellate court opinion in the Official Reports. With these policies now in place, separate statements will afford members of the court an opportunity to express their views regarding the denial of a petition for review, but of course any separate statement represents the views solely of the authoring justice or any justice signing the statement. In addition, it remains the case that an order denying review does not reflect the views of the justices voting to deny review concerning the merits of the decision below. Rather, an order denying review represents only a determination that, for whatever reason, a grant of review is not appropriate at the time of the order. (See People v. Davis (1905) 147 Cal. 346, 349-350; see also, e.g., People v. Triggs (1973) 8 Cal.3d 884, 890-891.) Similarly, that a justice has not prepared, responded to, or joined a separate statement should not be read as reflecting the views of that justice concerning any separate statement that has been filed by any other justice.
Werdegar, Chin, Corrigan, Liu, Cuéllar and Kruger, JJ., concur.

So, Vergara is here and CQE is here (scroll to the end to see the dissentals, which are single-spaced).

Articles of appellate note

Today's DJ features the Appellate Zealots' column, SLAPPing a mixed cause of action OK'd, about the Baral v. Schnitt opinion: "the Supreme Court decided that an anti-SLAPP motion may be brought against the portion of a mixed cause action that arises from protected rights. It based its decision partly on policy, agreeing that allowing a plaintiff to hide an attack on protected rights within a broader cause of action invites artful pleading, and noting that the Legislature was intent on stomping out litigation over protected speech and petition rights at an early stage. It also found support in the statutory language, because the Legislature called an anti-SLAPP motion a "motion to strike," and motions to strike traditionally have been allowed to attack discrete claims within a cause of action."

And today's DJ also presents For whom the 'death knell doctrine' tolls in state courts, by Zareh Jaltorossian and Jeffrey Fuchsman, about Young v. REMX Inc.: "Young confirms that the death knell doctrine requires a genuine "death." The challenged order must have finally disposed of all class/representative claims. In other words, the claims of the absent class members must suffer a knock-out - merely being down for the count is not enough. In the end, Young's bright-line holding enhances the clarity and certainty in this area of law, something that in the long run will benefit all litigants."

On the other side of the country, the NYLJ offers How I Learned to Stop Worrying and Love the Brief, which contains much advice and insight on brief writing:
First and foremost, embrace criticism. Our mission as attorneys and writers is to persuade a human being who has normal conversations with people when she's not in a courtroom. If the person reviewing your work says she does not understand something, then it is not clear enough and it must be changed, not defended. The judge, or more likely her clerk who is going to be reading the thing will not understand it either, and it is unlikely that she will have or take any extra time to try. A written product is always a draft until it sees the light of day through someone else's eyes, and that is when it begins to blossom. So savor the feedback, even if it has the unpleasant scent of criticism.

Friday, August 19, 2016

Practitioner's Playbook: The Appellate Brief

That's the title of an article in Law360 today here. What wisdom does it contain?
The briefs are the key to an appeal. So briefs that have sloppy writing, thin legal research, even a typo, miscitation, erroneous fact or imprecise argument may thwart success.
Briefs need to be organized. Provide a roadmap of the issues, which are the most important, and which are alternatives. A good brief can be a guide for the court about how to structure and write its opinion. Include an introduction that tees up the case and the issues. Omit superfluous facts, especially dates. Don't underestimate your opponent, i.e., anticipate what the other side will say. Use a fair and even tone. Keep sight of the big picture, i.e., have a theme and a meme that simply and memorably encapsulates your position.

Today's DJ features Does a deferral effectively deny a motion to compel? by Jim Martin and Kasey Curtis, about a pair of 9th Circuit opinions (Van Dusen v. Swift Transportation and In re Swift Transportation) addressing arbitration appeals.=
Van Dusen demonstrates that the only appealable orders are those specifically set forth in the FAA - here, an order actually denying a motion to compel. Orders that merely defer ruling on the motion are not a denial and do not confer appellate jurisdiction. Swift Transportation, by comparison, demonstrates the difficulty in using writ relief to obtain a prompt decision on arbitrability. 

Wednesday, August 17, 2016

9th Cir. seeks Appellate Reps

Like appellate sanctions? Yesterday's installment is here.

On the federal side: Ninth Circuit Seeks Candidates for Appellate Lawyer Representatives

The United States Court of Appeals for the Ninth Circuit is seeking applicants from among the federal appellate bar to serve as Appellate Lawyer Representatives to the Ninth Circuit Judicial Conference. Those selected will serve three year terms commencing October 1, 2016, during which they will participate in meetings throughout the circuit, coordinate activities with District Lawyer Representatives, and attend and participate in the Ninth Circuit Judicial Conference, an annual gathering of federal judges, attorneys, agency representatives and court staff. This is a hard-working committee, so familiarity with this court's rules of practice and the ability to serve on one or more sub-committees will be important.
To be considered, applicants should submit a resume of no more than two pages and a brief statement of interest and qualifications, with emphasis on their appellate experience, particularly in the Ninth Circuit. The material should be mailed to Molly Dwyer, Clerk of Court, James R. Browning United States Courthouse, 95 Seventh St., San Francisco, CA 94103, or sent via email to The deadline to submit materials is September 6, 2016.

Click here for additional information

Tuesday, August 16, 2016

5th DCA pro tem

The 5th DCA, which has one vacancy, has announced that:

Image result for thanks for helping outJudge Brian L. McCabe of the Superior Court of Merced County will be sitting Pro-Tem beginning September 1, 2016 until October 31, 2016.

Monday, August 15, 2016

Judge’s Vacation No Excuse for Not Hearing New Trial Motion by Deadline

Image result for gone fishingCourt Says Judge’s Vacation No Excuse for Not Hearing New Trial Motion by Deadline reports the MetNews about this case here. (Note the interesting spacing in the decision too.)

Today's DJ has several articles of appellate note:

  • Preparation is Over, It's Time for Oral Argument, an installment in Moskovitz On Appeals, about your opening lines; your state of mind; staying in the moment; listening carefully, answering questions, and keeping case law discussion to a minimum. (Similar advice is offered here: Oral Argument for Young Lawyers.)
  • Client Care 2, part of the Lessons Learned series by David Balabanian, about how its essential to always understand precisely who your real client is; learn precisely what the client actually wants; be cost-effective with expenses.
  • Excellent Legal Analysis. Now Make it 40% Shorter, by Dechert LLP's Jeff Fisher, advising legal writers to avoid passive voice; use simple language and avoid jargon; use active verbs; don't noun-ify verbs; and minimize adverbs, adjectives and redundant words.

Friday, August 12, 2016

Easy peasy!

2/5's Justice Baker enters our first-line contest with this zinger!
Image result for easy peasyMany cases require us to resolve complicated issues to determine who should prevail on appeal from a trial court judgment, but this is not one of them.

Proposed FRAP amendments: Public comment sought

On August 12, 2016, the Judicial Conference Advisory Committees on Appellate, Bankruptcy, Civil, and Criminal Rules 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.govThe public comment period ends February 15, 2017.

FRAP's at issue are:
  • Appellate Rules 8, 11, 25, 28.1, 29, 31, 39, 41, and Form 4 
In addition to making the time for a reply brief 21 days (instead of the existing 14+3 days), the proposals would:
(1) conform Appellate Rules 8(a)(1)(B), 8(a)(2)(E), 8(b), 11(g), and 39(e)(3) to the proposed
revision of Civil Rule 62 by altering clauses that use the term “supersedeas bond”;

(2) allow a court to prohibit or strike the filing of an amicus brief based on party consent under
Appellate Rule 29(a) when filing the brief might cause a judge’s disqualification;

(3) delete a question in Appellate Form 4 that asks a movant seeking to proceed in forma
pauperis to provide the last four digits of his or her social security number; and

(4) revise Appellate Rule 25 to address electronic filing, signatures, service, and proof of service
in a manner conforming to the proposed revision of Civil Rule 5.

Wednesday, August 10, 2016

2d DCA pro tem update

The following are currently sitting on assignment:

  • Judge Maria E. Stratton of the Los Angeles Superior court, will be sitting Pro-Tem in Division Three until September 30, 2016.
  • Judge Michael J. Raphael of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Five until September 2, 2016.
  • Judge Sanjay T. Kumar of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Five beginning August 22, 2016 until September 30, 2016.
  • Judge Sherilyn P. Garnett of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until September 30, 2016.

Monday, August 8, 2016

Making Law in the Dark

Image result for no erasers
Rather than erasing opinions,
how about erasing the depublication rule?
That's the title of today's DJ article by Justice Tony Kline and appellate lawyer Jerry Falk about how the recent demise of automatic depublication when the Supremes grant review "is a significant improvement, but it corrects only one part of the problem." The next step is to do away with the Supreme Court's power to summarily and selectively depublish any Court of Appeal opinion.
A much more detailed version of today's DJ article, will be the lead article in the next issue (vol. 29, issue 2) of California Litigation.

Hooray, Cal.App.5th is here!

We'll give a special shout-out to the first reader who reports what color the band will be?
(E.g., for Cal.App.4th it was blue; and red for Cal.App.3d...)
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Cal.App.4th has come to a close!
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Cal.5th is also here as well!

Also, want to see the current roster of the Judicial Council Advisory Committees (including, e.g., the Appellate Advisory Committee)? Then click here.