Friday, August 29, 2014

"Death of Justice H. Walter Croskey"?

The MetNews is apparently soliciting words of tribute for an obituary for Justice Croskey...
Justice H. Walter Croskey

Div. 3 had been issuing opinions with a footnote reading: "Due to the unavailability of the third member of the panel which was assigned to hear this matter, this opinion is being filed with the concurrence of the two remaining members of the panel. (Cal. Const., art. VI, § 3 [“Concurrence of 2 judges present at the argument is necessary for a judgment”]; see, e.g., People v. Castellano (1978)
79 Cal.App.3d 844, 862.)"

Appellate Extravaganza

To kick off the holiday weekend (see Supreme Court Beach, here), today's DJ & Recorder offer a buffet of appellate goodness:
  • Stanford professor confirmed to state Supreme Court. Emily Green begins the article like this: "Stanford Law School Professor Mariano-Florentino Cuellar, Gov. Jerry Brown's latest nominee to the state Supreme Court, was unanimously confirmed Thursday, becoming the second academic without previous judicial experience to join the court in three years. Cuellar, a Mexican immigrant who has worked in two presidential administrations, was feted in a courtroom packed with state and federal judges, including his wife, U.S. District Judge Lucy Koh of San Jose. Cuellar told the audience the law depends on people's principles and "judges must be humble yet precise." They were his first public remarks since Brown nominated him in late July."
  • Three state appeals court justices confirmed: Lee Edmon, Jonathan Renner and Brian Hoffstadt join state courts of appeal [see here for the Judicial Council's official press release: Commission Confirms Appointments to Supreme Court, Court of Appeal, Second and Third Districts].
  • And The Recorder offers Cuellar Confirmation More of a Love Fest. (Interestingly, the DJ article says Tino is 42 years old, The Recorder says 41; the MetNews report also says 41: Cuéllar Wins Approval as Supreme Court Justice: Commission Also Approves Edmon, Hoffstadt, and Renner as Nominees to Court of Appeal.) See also Law360's "federal-perspective" in Judge Lucy Koh's Husband Tapped For Calif. High Court.
  • Also in The Recorder When Preparing an Appellate Brief, Prep the Record, then Stick to It.
  • And, if that's not enough, H&L's David Axelrad and Peder Batalden present Briefing between brevity and boredom about the recent proposal to shorten federal appellate briefs ("parties' opening and answering briefs would be limited to 12,500 words (the current limit is 14,000 words), and reply briefs would be limited to 6,250 words (the current limit is 7,000 words)") -- "This proposal may alarm lawyers who believe that the quality of their advocacy is proportional to its quantity." Two big consequences?
    • "First, writing a shorter brief requires an attorney to be particularly vigilant in selecting the issues and arguments to pursue on appeal. Briefing weak or tangential arguments has always been poor strategy on appeal - but reduced word limits may make it all but impossible to do so.
    • Second, writing shorter briefs requires rigorous editing. Unfortunately, it seems that something in the nature of legal training leads many attorneys to "overwrite," or to complicate what they have to say. Drafting briefs on computers can exacerbate these tendencies by enabling lawyers easily to copy and paste from other documents and produce briefs of prodigious length."

Thursday, August 28, 2014

Analysis of amended opinions

If you scan the Court of Appeal's opinion pages, you'll sometimes see a case number followed by an M (or an A). These are modifications (or amendments) to opinions, typically denying rehearing and/or perhaps tweaking a line or two in a decision.
Today's DJ has Emily Green's Get me rewrite! State appellate justices' amended opinions can be revealing, which explores modified opinions. "Justices sometimes falter when drafting opinions, penning ill-conceived footnotes, hyperbolic diatribes and incorrect facts. Sometimes, though, they take another shot at it, rewriting themselves and editing blunders out of the permanent record."
One example in the article concerns a 2008 opinion where 9th Circuit Judge Trott deleted a footnote from an opinion. And speaking of Judge Trott, do NOT miss his concurring opinion in Alexander v. FedEx here, which makes a number of pithy points, including a warning about selective quotations:

Once again, we learn the regrettable lesson that the basic information we require to resolve a controversy is not always found in the parties’ briefs, but in the ungilded record itself.  A good rule in this business is to verify before you trust. Lawyers would be well advised not to elide the truth, the whole truth, and nothing but the truth.
"But calling employees contractors does not make it so, the appellate panel ruled.
'Calling a dog's tail a leg does not make it a leg,' Trott wrote, quoting Abraham Lincoln."

Wednesday, August 27, 2014

Free 9th Cir. Practice Guide updated

The Appellate Lawyer Representatives’ Guide To Practice in the United States Court of Appeals for The Ninth Circuit has been updated here. "A revised version, dated August 26, 2014, now addresses writs, en banc petitions and procedures, and amicus briefs, and has been revised to reflect changes in rules and practice."

Right Coast appellate update: The NY Law Journal issued a special appellate practice insert here. Some of the articles are of general application, e.g., Smile: This is Oral Argument and The Appellate Mandate: A Critical Step (which discusses 9th Cir. law).

Baseball fans following USA v. Barry Bonds take note: Notice of En Banc Oral Argument on Thursday, September 18, 2014, 2:00 p.m., Courtroom One, James R. Browning US Courthouse, San Francisco.

Tuesday, August 26, 2014

Justice Baxter to keynote ABA Jury Project Symposium at USD

Join the ABA Commission on the American Jury Project in beautiful San Diego for the 2014 National Symposium on the American Jury Project.  "Assuring Fair and Impartial Juries" is a two-day CLE event taking place October 23-24 at the University of San Diego School of Law, Joan B. Kroc Center for Peace Studies.  The two-day event will feature topics on exclusions, hardships, bias and jury consultants. Agenda here.

Monday, August 25, 2014

Proposal for Mandatory Tentative Opinions

Click here to review proposals from the Conference of California Bar Associations, one of which (Resolution 07-01-2014) seeks to amend CRC 8.256 to require all California Courts of Appeal to either issue tentative opinions or focus letters a week before oral argument to alert the parties to the basis for the court's likely ruling and/or the issues the parties should address at oral argument.
I Want To Believe

Another proposal (Resolution 07-01-2014) would  allow a peremptory challenge after an appellate reversal regardless of whether there will be a "new trial."

Finally, Resolution 07-04-2014 seeks to replaced the Code of Civil Procedure with an Automated Decisional System. "While this Resolution is a joke, the effects of ongoing budget cuts to the third branch of government are not."
I For One Welcome Our New Insect Overlords
A quote from the Resolution:
"All hail our future robot overlords."

Thursday, August 21, 2014

Proposal to shorten federal appellate briefs

Now that we're all comfortable with briefs of 14K words ... there's a proposal to amend the FRAP to trim that down to 12,500. Apparently, the 14K number was based on a mistake! (The 1998 amendments assumed one page was about 280 words, but a study of old briefs shows that 250 words per page is more accurate...) Also, another proposal would do away with the extra 3-day rule, now that e-services is well-established. Another proposal would amend FRAP 29 to add rules for amicus briefs at the rehearing stage.
See here and provide your feedback by Feb. 17, 2015 here.

You're Killin' Me Smalls!
Less length; less time...

Wednesday, August 20, 2014

Details from the 2014 California Courts Stats report

Again for regular court-watchers, there are no real surprises in this year's stats.

Cal Supreme Court

  • 94 opinions published
  • 16 Court of Appeal opinions depublished
  • overall petitions for review = 4% "grant" rate (grants + grant & hold + grant & transfer)
  • civil PFRs = 6% grant rate
  • rehearings granted = 0 for 17 (you have to go back to 2007 to find a grant)
  • Stats you want to know but that aren't reported = time on docket, reversal rate, ...
Always Give 100%, Unless You're Donating Blood

Cal Courts of Appeal
  • 9% of all opinions were published
    • 17% for civil appeals, with 3d at 23% and 2d at 15%
    • 3d has a 50% publication rate for original proceedings!
  • Median time from notice of appeal in civil case to opinion, Statewide = 469 days
  • Fastest is 4/3 at 393 days; slowest is 3d at 607 days
  • Civil reversal rate = 18%
    (affirmance rate = 79%, 3% of appeals dismissed)

Details from 9th Cir.'s latest Annual Report

Below is a quick summary of items from the 9th Circuit's 2013 Annual Report.
For 9th Circuit watchers, none of this will be new or newsworthy.

  • the overall reversal rate was 8.3% (cf. the nat'l average is 6.7%)
    • civil appeal reversal rate (not including gov cases) = 19.7%
    • civil cases involving the government = 6.8%
    • 11.5% for original proceedings
    • 8.3% in agency appeals
  • median time from notice of appeal to disposition = 13.3 months
  • median time for panel decisions after argument = 1.2 months
  • workload for the 9th Cir. held steady
    • District courts account for 61% of appeals (the 4 Cal districts accounted for 64% of new civil appeals)
    • BIA appeals are 30.3%
  • prisoner petitions & immigration cases predominate the docket
  • pro pers filed 52% of all new appeals
  • the court has 29 judges (a full complement) for the first time in its history
  • 16 senior status 9th Cir. judges worked on matters
  • the Circuit is live-streaming audio & video of all arguments
    • all 11 courtrooms in the 4 9th Cir. courthouses have video
    • one each in SF, PAS & Portland have high-def! (So you can see every bead of sweat...)
  • the Appellate Lawyer representatives created a free practice guide
  • Active judges can have up to 4 law clerks (Sr.'s get 3) and the most represented schools were Yale, Stanford and Harvard
Federal Mattress Tag Inspector
It's official!

Tuesday, August 19, 2014

Order denying anti-SLAPP motion is NOT appealable

We all know and love CCP 425.16, subdivision (i), which provides that an order granting or denying an anti-SLAPP motion is immediately appealable. (See also CCP 904.1, subdivision (a)(13).) So when is an anti-SLAPP order NOT appealable? Apparently, when an exemption applies, such as the public enforcement actions exemption. See yesterday's published case from 1/2, People v. McGraw-Hill Companies, dismissing an appeal from the denial of McGraw-Hill's  anti-SLAPP motion.

The Time Is Now
Let's do away with more anti-SLAPP appeals!!

Tuesday, August 12, 2014

9th Cir.'s FY2013 Annual Report now available!

The Ninth Circuit's Annual (Fiscal Year) 2013 Annual Report is now available here!
What an amazing day!  (See later post here for a summary of key items.)
Let's Get Nerdy

Courts Join in Publication/Depublication Game

Think Outside The BoxUsually only parties to the case or outside interest groups request publication or depublication of an opinion. But this year courts/judges themselves have stepped in. In April, the Fifth District Court of Appeal asked to depublish an Appellate Division opinion, which the Supreme Court granted (but then it vacated its depublication order). (See At The Lectern.) This month, Sacramento Superior Court judge David Brown successfully requested publication of a Court of Appeal opinion.

If this post seems especially good, that's because it comes from SCAN fan Kent Qian (of the National Housing Law Project in San Francisco). Lessons? (1) You needn't be based in SoCal to enjoy this blog; and (2) You can improve this blog by submitting items of interest. (Please!)

2014 Cal Court Stats Report is available!

It's that time of year again! Find out how  your favorite appellate courts stack up in the annual stat pack:
The report is here.  News release here. (See later post here for summarized details.)

Court Statistics Report
The Court Statistics Report (CSR) is published annually by the Judicial Council of California and is designed to fulfill the provisions of article VI, section 6 of the California Constitution, which requires the Judicial Council to survey the condition and business of the California courts. The CSR combines 10-year statewide summaries of superior court filings and dispositions with similar workload indicators for the California Supreme Court and Courts of Appeal. The 2014 CSR also provides more detailed information on filings and dispositions in the individual superior courts for the most recent fiscal year for which data are available, 2012–2013.
Caseload Data and Court Workload
California’s court system is the largest in the world and serves a population of more than 38 million people—about 12 percent of the total U.S. population—and more than 2,000 judicial officers and approximately 19,000court employees statewide address the full range of cases heard each year. The vast majority of cases in theCalifornia courts begin in one of the 58 superior, or trial, courts, which reside in each of the state’s 58counties. With more than 500 court buildings throughout the state, these courts hear both civil and criminal cases as well as family, probate, mental health, juvenile, and traffic cases.

Monday, August 11, 2014

9th Circuit Chambers to be in San Jose

Today's Recorder offers Friedland Take Ninth Circuit to Silicon Valley, reporting that Judge Friedland will be setting up chambers in San Jose.
Appellate jurisprudence is solitary work, and judges across the country have long taken the liberty of setting up their chambers in their hometowns, regardless of where their court is grounded. Though the Ninth Circuit has just four courthouses, its 45 active and senior judges are chambered in 18 cities, according to the court's website. From Pocatello, Idaho, to Honolulu, the judges toil away in cities about as far-flung as their court's jurisdiction.
The Ninth Circuit's other new appointee, John Owens, works from the district courthouse in San Diego, a few hours away from the nearest circuit courthouse in Pasadena.
In other 9th Circuit news:

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, 2014, 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.
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 August 29, 2014. 

Also, which SCOTUS Justice pairs with which super hero? See the National Law Journal article here.
You know the nine justices; the nine super heroes are: Superman, Batman, Spiderman, Wonder Woman, Captain America, She-Hulk, Hawkeye (no, not from M*A*S*H), Nightcrawler (not fishing bait, but apparently an X-Men character), and Kitty Pryde (another obscure X-Men character).
Always Be Yourself

Thursday, August 7, 2014

Examining Tino

Emily Green has started to dig in on Tino Cuellar's work with today's cover story Cuellar Endorses Realpolitik view of Judging in Academic Writing: Cuellar Appears to Champion Pragmatic Approach for Courts. According to his writings, Cuellar "believes judges play an active role in shaping the law." In his 2001 doctoral thesis he wrote: "As far as the law is concerned, political response are actually fair game for interpreters to consider when crafting their decisions." In other words, he's a follower of legal realism (e.g., Justice Holmes' "The life of the law...") rather than legal formalism (e.g., Chief Justice Roberts calling balls and strikes). Both Cuellar and Justice Liu served on the board of American Constitution Society the progressive counterpart to the Federalist Society.

"Strategic. Practical.
Attuned to the relationship between the courts and politicians."

"Unlikely to go off on futile crusades."

Tuesday, August 5, 2014

2d DCA pro tem updates (extensions through Sept.)

Assigned Judges

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 September 30, 2014
  • Judge John Shepard Wiley, Jr. of the Los Angeles Superior Court, will be sitting Pro-Tem in Division One until September 30, 2014
  • Judge Edward A. Ferns of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Two until September 30, 2014
  • Judge Lee Edmon of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Four until July 31, 2014
  • Retired Judge Michael Mink will be sitting Pro-Tem in Division Five until September 30, 2014
  • Judge Earle Jeffrey Burke of the San Luis Obispo Superior Court, will be sitting Pro-Tem in Division Six until September 30, 2014
  • Judge John Segal of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until September 30, 2014
  • Judge Russell S. Kussman of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Eight until September 30, 2014
(Also in the 5th DCA, Judge Hilary Chittick is serving as a Pro Tem Justice)

And, introducting...

Monday, August 4, 2014

Profile of 5th DCA's longest-serving justice: Bert Levy

Today's DJ profiles 5th DCA Justice Levy, who, with 17 years under his belt, is the longest-serving justice on the court (and has no plans to retire). The profile reports that the Fresno native  "leans center-right jurisprudentially" and is "exceptionally nice."

His great-grandfather helped draft Fresno's City Charter.
Today's DJ also features Justice Gilbert's latest: Almost the Truth, which cites Palsgraf and notes that "Most of our stories in law or elsewhere are, at best, almost the truth."  He also discusses Judge Aldisert's latest book "Almost the Truth, A Novel of the Forties and the Sixties."

Remember "one man, one vote" (Baker v. Carr?). Today we have "one order, one appeal" -- see here.

Thursday, July 31, 2014

CJ Kozinski on Firing Squads

Self-professed "avid reader" and "big fan" of SCAN David Hackett at GMSR draws our attention to this LA Times interview of Chief Judge Kozinski, in which he discusses his reviews on the death penalty and his recent dissental: Judge Alex Kozinski on bringing back firing squads: No, I wasn't kidding

See here too.

Aug. 28 Hearing date for nominees

Hearings to consider judicial seats on the Supreme Court of California, and the Court of Appeal Second and Third Appellate Districts

SAN FRANCISCO—Four public hearings have been scheduled by the Commission on Judicial Appointments for Thursday, August 28, 2014, beginning at 9:00 a.m. in the Supreme Court Courtroom in the Ronald M. George State Office Complex, Earl Warren Building, 350 McAllister Street, Fourth Floor, San Francisco:
9:00 – 11:00 a.m. Professor Mariano-Florentino Cuéllar, as Associate Justice of the Supreme Court of California
Commission members: Chief Justice Tani G. Cantil-Sakauye (Chair), Attorney General Kamala D. Harris, and Senior Presiding Justice Joan Dempsey Klein
11:15 a.m. – 12:15 p.m. Mr. Jonathan K. Renner, as Associate Justice of the Court of Appeal, Third Appellate District (Sacramento)
Commission members: Chief Justice Tani G. Cantil-Sakauye (Chair), Attorney General Kamala D. Harris, and Administrative Presiding Justice Vance W. Raye
1:00 – 2:00 p.m. Judge Lee S. Edmon, as Presiding Justice of the Court of Appeal, Second Appellate District, Division Three (Los Angeles)
Commission members: Chief Justice Tani G. Cantil-Sakauye (Chair), Attorney General Kamala D. Harris, and Senior Presiding Justice Joan Dempsey Klein
2:15 – 3:15 p.m. Judge Brian M. Hoffstadt, as Associate Justice of the Court of Appeal, Second Appellate District, Division Two (Los Angeles)
Commission members: Chief Justice Tani G. Cantil-Sakauye (Chair), Attorney General Kamala D. Harris, and Senior Presiding Justice Joan Dempsey Klein

Summary Biographies
Professor Cuéllar fills the vacancy created by the upcoming retirement of Associate Justice Marvin R. Baxter on January 4, 2015. He has been a Stanford Law School professor since 2001 and was appointed Stanley Morrison Professor of Law in 2012. Professor Cuéllar has been director of Stanford University’s Freeman Spogli Institute for International Studies since 2013, Professor of Political Science at Stanford’s School of Humanities and Sciences since 2010, and was co-director of Stanford’s Center for International Security and Cooperation from 2011 to 2013. He serves as a presidential appointee to the Council of the Administrative Conference of the United States, and is a member of the Board of Directors for the Constitution Project, the American Law Institute Council and the American Constitution Society Board of Directors.
Professor Cuéllar co-chaired the National Equity and Excellence Commission created by Congress from 2011 to 2013. Under President Obama, he served as special assistant to the President for Justice and Regulatory Policy at the White House Domestic Policy Council in 2009 and 2010 and was co-chair of the Obama-Biden Transition’s Immigration Policy Working Group in 2008 and 2009. He was a law clerk to Judge Mary M. Schroeder at the U.S. Court of Appeals for the Ninth Circuit from 2000 to 2001 and a senior advisor to the Under Secretary for Enforcement at the U.S. Department of the Treasury from 1997 to 1999.
Mr. Renner fills the vacancy created by the elevation of Associate Justice Tani G. Cantil-Sakauye to Chief Justice of California in 2011. He has served as legal affairs secretary in the Office of Governor Brown since 2011 and as senior assistant attorney general at the California Department of Justice, Office of the Attorney General from 2009 to 2010, where he was supervising deputy attorney general from 2006 to 2009 and deputy attorney general from 2000 to 2006. Mr. Renner was an associate at Kronick, Moskovitz, Tiedemann and Girard from 1998 to 2000 and at Porter, Scott, Weiberg and Delehant from 1997 to 1998.
Judge Edmon fills the vacancy created by the upcoming retirement of Presiding Justice Joan Dempsey Klein on January 4, 2015 and has served as a judge of the Superior Court of California, County of Los Angeles since 2000, where she served as Presiding Judge from 2011 to 2012. She was partner at Dewey Ballantine LLP from 1990 to 2000, where she was an associate from 1987 to 1990, and was an associate at Adams Duque and Hazeltine from 1981 to 1987. Judge Edmon was president of the Los Angeles County Bar Association from 1998 to 1999.
Judge Hoffstadt fills the vacancy created by the retirement of Associate Justice Kathyrn D. Todd and has served as a judge of the Superior Court of California, County of Los Angeles since 2010. He was a partner at Jones Day from 2007 to 2010 and served as an assistant U.S. Attorney at the U.S. Attorney’s Office, Central District of California from 2000 to 2007, as senior counsel at the U.S. Department of Justice, Office of Policy Development from 1998 to 2000, and at the Federal Communications Commission, Office of General Counsel from 1997 to 1998. Judge Hoffstadt was a law clerk for Associate Justice Sandra Day O’Connor at the U.S. Supreme Court from 1996 to 1997 and for Judge Cynthia H. Hall at the U.S. Court of Appeals, Ninth Circuit from 1995 to 1996.
Testimony and Comment
Anyone wishing to testify before the commission must state that request in writing and include a summary of the facts on which any testimony or opinion will be based. A request to be included on the speakers’ list must be received by the commission by 5:00 p.m. on Thursday, August 21, 2014.
And all communications to the commission by persons who wish to comment should be received by 5:00 p.m. on Thursday, August 21, 2014.
The commission’s address is:
Commission on Judicial Appointments
c/o Chief Justice of California
Supreme Court of California
350 McAllister Street
San Francisco, California 94102
Attention: Secretary to the Commission on Judicial Appointments
The Guidelines for the Commission on Judicial Appointments are published as an appendix to the California Rules of Court and are available on the California Courts website.

Wednesday, July 30, 2014

The 5 Types of Appellate Briefs You Don't Want to Write

In today's Recorder Cameron Gilbert (director of Counsel Press Legal Research Group) offers The Five Types of Appellate Briefs You Don't Want to Write. In short, his dreadful quintet are:

1. The See-What-Sticks Brief -- Defect = presenting too many issues.
2. The Remix Brief -- Defect = merely converts trial briefing into appellate briefing.
3. The Frankenstein Brief -- Defect = too many cut-and-pastes from too many other docs.
4. The Too-Many-Cooks Brief -- Defect = multiple collaborators prevent a harmonious brief.
5. The Un-Brief Brief -- Defect = not enough editing, resulting in a wordy, rambling document.

And how does one serve a Franken-brief?