On Oct. 7, the OCBA Appellate Section will present "The Court of Appeal, Then and Now." Three court attorneys will deepen our understanding of the current court by discussing the 4/3's history and evolution.
We will then review new filing and argument procedures during a guided tour of the new courthouse.
Oh, and we'll take a behind-the-scenes look at a justice's chambers!
The section meets from 12-1:30 p.m. at Jason’s Downtown Restaurant, 416 W. Fourth St., Santa Ana. Register online.
Tuesday, September 29, 2009
Tuesday, September 22, 2009
California Appellate Bars
The LACBA Appellate Courts Committee has done appellate lawyers the tremendous service of compiling a list of the various appellate law bar association sections and committes throughout California. Download "Appellate Bar Associations in California" from their website.
Very useful.
Very useful.
Thursday, September 17, 2009
State Bar Appellate Lawyer Reception
As for the State Bar meeting, I'd like to thank Mitch Abbott and Peter Pierce for hosting an enjoyable reception for appellate lawyers on the first night of the State Bar meeting. A fine time was had by all.
Returning to Duty
Sorry abou the delay in posting. I have no better excuse than the start of school, the State Bar meeting and the California Conference of Bar Associations, and the "press of business" (such a great phrase; it is just me, or does it sound like a medieval torture?)
And the start of the football season, too. And a fine start it is:
I'll see if I can get caught up.
And the start of the football season, too. And a fine start it is:
I'll see if I can get caught up.
Wednesday, September 2, 2009
Justice Stevens to Retire?
The NYT reports Justice Stevens has hired not hired the usual contingent of four law clerks, but only one -- the usual number alloted to a retired justice.
Monday, August 31, 2009
Covering Briefs
That's a joke, son (quoting Foghorn Leghorn)
Dependable blog tipster Ben Shatz has an article in last Thursday's Daily Journal on the topic of appellate brief covers.
This is a serious topic. Lawyers blow their credibility on poorly designed, poorly constructed covers. Get the details of the case right, and follow the applicable rules, and you're well on your way.
Better yet, as Ben recommends, subtle advocacy opportunities await you on the cover. Pick up the DJ to learn more.
Dependable blog tipster Ben Shatz has an article in last Thursday's Daily Journal on the topic of appellate brief covers.
This is a serious topic. Lawyers blow their credibility on poorly designed, poorly constructed covers. Get the details of the case right, and follow the applicable rules, and you're well on your way.
Better yet, as Ben recommends, subtle advocacy opportunities await you on the cover. Pick up the DJ to learn more.
NYLJ: Briefing Mistakes
First up from the NYLJ's current appellate coverage is Harry Steinberg's article listing the Top 10 Common Brief Writing Mistakes.
My two favorites:
"1. Failing to take full advantage of respondents' and reply briefs. . . . The most potent argument you can make is that your opponent has ignored or mischaracterized key facts and/or has failed to cite controlling cases or has cited cases that do not actually support the argument being made."
"2. Failing to explain why the trial or motion court should be reversed. The flip side of the first error is that an appellant will merely rehash the argument made in the lower court without explaining exactly what is wrong with the order on appeal and why it should be reversed."
Together, these pinpoint the perfect appellate brief -- one that addresses the trial court decision AND rebuts the opponent's arguments.
But I disagree with Harry on a couple points:
He writes, "Many lawyers feel that they are obligated to force-march the appellate court through the entire procedural history of the case whether or not it is relevant to the issue on appeal. This is a myth. . . . There is no need to recite the date the summons and complaint was filed . . . ."
I recommend covering the "operative" procedural history in all cases and including those documents in the record -- things like the complaint and the answer. Courts often resolve appeals on isues like timeliness or waiver, and the operative documents may allow the court to reach them.
Harry also writes, "Write a preliminary statement that is, in effect, a mini-brief. In no more than three to five pages, identify the nature of the appeal and the parties and their claims, briefly describe the facts and the outcome in the trial court and conclude with a brief description of what you would like the appellate court to do and why."
This is an absurd embodiment of a good idea. It is CRITICAL to identify the nature of the appeal, the parties and their claims, and why you win. But it is POINTLESS to consume five pages to do it -- that is asking the reader to skim or skip it.
You should do so in a SHORT introduction. One page max. One paragraph is better. You should also use the table of contents (1 page is best) to lay out the outline of your argument.
If you can't sum up the case and why you win from a 1-page table of contents and a 1-page answer, you may not truly understand your appeal. And you certainly can't expect the court to understand it.
My two favorites:
"1. Failing to take full advantage of respondents' and reply briefs. . . . The most potent argument you can make is that your opponent has ignored or mischaracterized key facts and/or has failed to cite controlling cases or has cited cases that do not actually support the argument being made."
"2. Failing to explain why the trial or motion court should be reversed. The flip side of the first error is that an appellant will merely rehash the argument made in the lower court without explaining exactly what is wrong with the order on appeal and why it should be reversed."
Together, these pinpoint the perfect appellate brief -- one that addresses the trial court decision AND rebuts the opponent's arguments.
But I disagree with Harry on a couple points:
He writes, "Many lawyers feel that they are obligated to force-march the appellate court through the entire procedural history of the case whether or not it is relevant to the issue on appeal. This is a myth. . . . There is no need to recite the date the summons and complaint was filed . . . ."
I recommend covering the "operative" procedural history in all cases and including those documents in the record -- things like the complaint and the answer. Courts often resolve appeals on isues like timeliness or waiver, and the operative documents may allow the court to reach them.
Harry also writes, "Write a preliminary statement that is, in effect, a mini-brief. In no more than three to five pages, identify the nature of the appeal and the parties and their claims, briefly describe the facts and the outcome in the trial court and conclude with a brief description of what you would like the appellate court to do and why."
This is an absurd embodiment of a good idea. It is CRITICAL to identify the nature of the appeal, the parties and their claims, and why you win. But it is POINTLESS to consume five pages to do it -- that is asking the reader to skim or skip it.
You should do so in a SHORT introduction. One page max. One paragraph is better. You should also use the table of contents (1 page is best) to lay out the outline of your argument.
If you can't sum up the case and why you win from a 1-page table of contents and a 1-page answer, you may not truly understand your appeal. And you certainly can't expect the court to understand it.
NYLJ Appellate Tips
The New York Law Journal -- free registration required, which I highly recommend despite the name; the site has general legal-interest articles useful to SoCal lawyers and covers megafirms with SoCal offices -- has a feature on "Court of Appeals and Appellate Practice."
Highlights to follow . . .
Highlights to follow . . .
Wednesday, August 26, 2009
Cal Supremes Now Post Briefs Online
1. As noted earlier, some prominent local lawyers have objected to the Cal. Supremes' practice of making appellate briefs available online through for-profit databases like Westlaw and Lexis, without the lawyers' consent and without compensating them.
2. The Cal Supremes have now started posting on their website the petitions for review and merit briefs for cases about to be argued.
2. The Cal Supremes have now started posting on their website the petitions for review and merit briefs for cases about to be argued.
US Supreme Court Event at the Pacific Club!
All SoCal appellate lawyers are invited to the Pacific Club in Newport Beach on Nov. 3 for a lively discussion of the US Supreme Court and Justice Sotomayor between local law school deans/legends Erwin Chemerinsky and John Eastman.The event is sponsored by the OCBA Appellate Law section. Anyone interested in current legal issues is welcomed to attend.
Stays and Supersedeas
4/3 Managing Attorney Glenn Salter has graciously agreed to speak at the next OCBA Appellate Law Section meeting. The presentation has the catchy title, "Stop This Case! Writs of Supersedeas and Stays Pending Appeal."
Yes, I thought that one up all by myself. Blame me, not Glenn.
The meeting will be on Wednesday, Sep. 2, at noon at Jason's Downtown Restaurant on 4th St. in Santa Ana, across from the federal building (and only a short stroll from the 4/3's new digs). Register online at the OCBA website.
Yes, I thought that one up all by myself. Blame me, not Glenn.
The meeting will be on Wednesday, Sep. 2, at noon at Jason's Downtown Restaurant on 4th St. in Santa Ana, across from the federal building (and only a short stroll from the 4/3's new digs). Register online at the OCBA website.
Monday, August 24, 2009
5th DCA -- JNE Pounds Poochigian?
Some news from NoCal . . .
Governor Schwarzenegger has appointed Charles S. Poochigian as associate justice of the Court of Appeal, Fifth Appellate District. Poochigian ran as the Republican nominee for Attorney General in 2006. He has served as a private practice attorney, state assemblyman and senator, and Appointments Secretary for Gov. Pete Wilson.
Numerous sources, including CalLaw's Legal Pad, are reporting the Commission on Judicial Nominees Evaluation (JNE, or "Jenny"), has deemed Poochigian "not qualified" for the position. Details are bound to follow . . .
Governor Schwarzenegger has appointed Charles S. Poochigian as associate justice of the Court of Appeal, Fifth Appellate District. Poochigian ran as the Republican nominee for Attorney General in 2006. He has served as a private practice attorney, state assemblyman and senator, and Appointments Secretary for Gov. Pete Wilson.
Numerous sources, including CalLaw's Legal Pad, are reporting the Commission on Judicial Nominees Evaluation (JNE, or "Jenny"), has deemed Poochigian "not qualified" for the position. Details are bound to follow . . .
Roberts Court Discussion
9th Circuit Judge Sandra Ikuta will moderate a discussion of the Roberts Court between SoCal law school deans Ken Starr of Pepperdine and Erwin Chemerinsky of UCI (and Friend of the OCBA Appellate Law Section).
The discussion will take place at 12 noon this Wednesday, Aug. 26, at the California Club on Fifth and Flower in downtown LA. Prepaid registration is only $25. The event is sponsored by the Federalist Society, whose website has all the details.
The discussion will take place at 12 noon this Wednesday, Aug. 26, at the California Club on Fifth and Flower in downtown LA. Prepaid registration is only $25. The event is sponsored by the Federalist Society, whose website has all the details.
Saturday, August 22, 2009
4/3 Reception
The OCBA Appellate Law Section and some specially invited guests welcomed the 4/3 to its new courthouse and thanked it for its ongoing support of the section by hosting a lunch reception last Thursday. We had a great turnout, both by the court and the section. Special thanks go to Presiding Justice David Sills and court administrator Kevin Stinson, shown in the middle picture.(Photos: JoAnn Weigand, OCBA)
Tuesday, August 11, 2009
Horvitz Adds Sonne
In other Horvitz and Levy news, the firm recently added attorney James Sonne.
The firm did not disclose, however, whether James is related to my former doctor, Marc Sonne. No doubt the rest of the appellate world is waiting breathlessly for confirmation.
The firm did not disclose, however, whether James is related to my former doctor, Marc Sonne. No doubt the rest of the appellate world is waiting breathlessly for confirmation.
Cal. Supremes to Review 2/5 Case
When is a stay a stay?
The California Supreme Court will review Bruns v. E-Commerce Exchange, in which a divided 2/5 panel held a discovery stay tolls the 5-year prosecution statute. Justice Mosk wrote the majority opinion, with which Justice Armstrong concurred.
Justice Turner wrote a dissenting opinion. The 4/3 recently embraced the dissent in an unpublished case.
The Recorder covers the story, noting that "appellate powerhouse Horvitz & Levy" and other prominent SoCal firms are involved in the case.
The California Supreme Court will review Bruns v. E-Commerce Exchange, in which a divided 2/5 panel held a discovery stay tolls the 5-year prosecution statute. Justice Mosk wrote the majority opinion, with which Justice Armstrong concurred.
Justice Turner wrote a dissenting opinion. The 4/3 recently embraced the dissent in an unpublished case.
The Recorder covers the story, noting that "appellate powerhouse Horvitz & Levy" and other prominent SoCal firms are involved in the case.
Thursday, August 6, 2009
Sotomayor Confirmed
From The Legal Times:
"The Senate has confirmed Judge Sonia Sotomayor to the Supreme Court in a historic vote that will make her the nation's first Hispanic justice and the third woman appointed to the Court. The final margin of 68-31 was larger than the 58-42 vote three years ago for Justice Samuel Alito Jr., but it was still a smaller margin than other justices have received.
In the wake of today's Senate vote confirming Sonia Sotomayor's confirmation to the Supreme Court, the Court announced that she will be sworn in by Chief Justice John Roberts Jr. on Saturday at 11 a.m. at the Supreme Court. She'll be given the constitutional oath of office in a private ceremony in the justices' conference room, followed by the judicial oath in the East Conference Room before a gathering of Sotomayor's friends and family. A formal investiture ceremony will take place on Sept. 8 with a special sitting of the Court."
"The Senate has confirmed Judge Sonia Sotomayor to the Supreme Court in a historic vote that will make her the nation's first Hispanic justice and the third woman appointed to the Court. The final margin of 68-31 was larger than the 58-42 vote three years ago for Justice Samuel Alito Jr., but it was still a smaller margin than other justices have received.
In the wake of today's Senate vote confirming Sonia Sotomayor's confirmation to the Supreme Court, the Court announced that she will be sworn in by Chief Justice John Roberts Jr. on Saturday at 11 a.m. at the Supreme Court. She'll be given the constitutional oath of office in a private ceremony in the justices' conference room, followed by the judicial oath in the East Conference Room before a gathering of Sotomayor's friends and family. A formal investiture ceremony will take place on Sept. 8 with a special sitting of the Court."
Law Review Submissions
Appellate lawyers are probably more likely than most practicing lawyers to read and write law review articles. (I don't have any support for this statement other than intuition and my own meager contribution to legal scholarship, but I'll stand by it because it's wholly innocuous.)
In any event . . .
If you've been working on an article, it's time to give it a final read-through. Concurring Opinions reports that the Fall submissions window will largely fall between August 11 and August 31. Good luck!
In any event . . .
If you've been working on an article, it's time to give it a final read-through. Concurring Opinions reports that the Fall submissions window will largely fall between August 11 and August 31. Good luck!
Full Accreditation for Western State
The OC's own Western State University College of Law has obtained full accreditation from the ABA after raising its bar passage rate. Congrats to Dean William E. Adams Jr. and the entire faculty, staff, and student body. (Pointer: LA Legal Pad)
Chemerinsky Appointment
UCI Law School Dean (and F.O.A.S.) Erwin Chemerinsky has been named to the ABA's new Commission on the Impact of the Economic Crisis on the Profession and Legal Needs. Congrats! (pointer: LA Legal Pad)
Subscribe to:
Posts (Atom)
