Thursday, July 28, 2016

4th DCA v. JAMS?

Today's DJ cover story is titled (online) 4th District's Neutrality Regarding JAMS Questioned: Two unrelated cases say the appellate court should not be hearing cases involving the ADR provider. The article explains that "three of the four living retired justices" work at "Orange County-based ADR provider" JAMS, and thus two lawsuits are challenging "the neutrality of the 4th District Court of Appeal to hear cases involving" JAMS.
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Retired Justices on the JAMS roster include Sonenshine, Wallin, Trotter (who stopped taking new cases at JAMS as of July 1), King, Low, Cooper, McAdams, Morrison, Panelli, Stone, Strankman, and Chuck Vogel.
In today's MetNews see Court of Appeal Allows Misrepresentation Suit Against JAMS.

Also in today's DJ, a letter to the editor from Santa Clara attorney John Haggerty, who argues that when judges rely on their attorney staff, they undermine our traditional adversarial system of justice:
'If courts base their decisions substantially on ex parte presentations from attorneys other than the parties' own attorneys, then those parties are essentially cut out of a decision-making process that vitally affects their lives especially when their attorneys are not even informed of these presentations. To avert such an undesirable result, courts should provide the parties' attorneys with copies of their tentative decisions and any memos from court attorneys upon which they are relying, prior to oral arguments, so that the parties may be provided with fair notice and a meaningful opportunity to be heard."

Image result for db cooperAnd The Recorder presents Justice Beds' latest: We Never Got Our Man.

Does the Cal Supreme Court's docket mirror state demographics?

Kirk Jenkins addresses The Geography of the High Court Docket in today's DJ, analyzing the origins of  cases reaching the California Supreme Court and concluding: "The data demonstrates that the civil docket parallels the state's population distribution only in a general way."

  • "Los Angeles County's share of the population has been drifting down over the past 15 years" but "It has accounted for a significantly greater share of the civil docket than one would expect: 39.67 percent of the caseload between 2010 and 2015, 32.64 percent ..."
  • "San Francisco's share of the civil docket has been steadily declining throughout the period, but has always outstripped its share of state population as well. San Francisco County had ... an estimated 2.21 percent in 2015. Nevertheless, it was the fourth most frequent source of civil cases between 2010 and 2015 and between 2005 and 2009 (5.98 percent and 7.95 percent, respectively), and the second most frequent source between 2000 and 2004 (11.86 percent)."
  • "San Diego County, which surpassed Orange County in recent years to become the second largest county in California by population, is a similar story. ... [I]t was somewhat overrepresented on the civil docket between 2005 and 2009, contributing 9.62 percent of the cases while having 8.31 percent of the population, but for the other two periods, it was underrepresented — 5.43 percent of the cases for 2010-2015, and 5.93 between 2000 and 2004."
  • "Orange County's share tracked its share of population fairly well: Orange County accounted for 8.4 percent of state population in 2000 and 8.1 percent in 2015, and produced 7.61 percent of the civil cases between 2010 and 2015, dipped to 3.77 percent for 2005-2009, but was up to 7.63 percent between 2000 and 2004."
  • "Riverside and San Bernardino counties, today the fourth and fifth biggest counties by population ... have been consistently underrepresented on the court's civil docket."

"The takeaway for California attorneys is this: The Supreme Court's civil docket only tracks population in the most general way, and the correlation grows less and less as one focuses on a shorter time period. The death penalty docket runs a bit closer to population distribution, but it still is greatly influenced by other factors. The originating jurisdictions of the court's criminal cases, on the other hand, tend to stick fairly close to the distribution of California's population."

Big Move for Horvitz & Levy

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The time's come to Exit Ventura Blvd...
The Valley's Horvitz & Levy, "the largest firm in the nation specializing exclusively in civil appeals," is leaving Ventura Boulevard in Encino as of Monday and will open its relocated office in the Business Arts Plaza in Burbank, 3601 W. Olive Ave, 8th Floor.

Wednesday, July 27, 2016

All the Supreme Court's Friends

Image result for friendsThat's the title of of today's DJ article by Orrick's Brian Goldman about SCOTUS amicus briefs this past term. "Overall, interested parties filed 849 amicus briefs, with at least one filed in 64 of the 69 cases the court heard." The affirmative action and abortion cases each had over 80 amicus briefs, several of which were discussed in the opinions. What makes an amicus brief stand out from the crowd?
Briefs that offer something new are more likely to attract attention and fall into three categories: (1) Brandeis briefs that supply additional facts and evidence, which inform the court about scientific or social background; (2) briefs that offer useful perspectives and predictions about the consequences of a ruling; (3) briefs that develop alternative arguments not pressed by the parties, thus giving the Court more options to consider.

For an anti-SLAPP opinion involving retired Justice Sonenshine, click here.

Here's an interesting case from 2/1 in which each justice files an opinion. Justice Johnson's dissent ends like this:
   The late Senator and statesman from New York, Daniel Patrick Moynihan, frequently observed: “[Y]ou are entitled to your own opinion, but you are not entitled to your own facts.” (Timothy J. Penny, Facts Are Facts (Sept. 4, 2003) National Review, at p. 1.) I would humbly add to that: And not your own law either.
   This axiom, which applies equally to kitchen table discussions, academic and political discourse, and appellate review, is part of our societal fabric and underlies our faith in the judicial process.
   I, therefore, must respectfully dissent.

Tuesday, July 26, 2016

Federal Appellate jurisdiction case

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No, wrong FAA...
Does the FAA (that's the Federal Arbitration Act, 9 U.S.C. § 1 et seq., not the airplane guys) provide the 9th Circuit with jurisdiction to hear an interlocutory appeal from a district court’s case management order? Today's opinion here says 'nope.'

Ok, well, how about a writ then? No dice (but with a dissent).

In other 9th Circuit news, two N.D.Cal. BK judges have been appointed to the BAP. Details here.

Monday, July 25, 2016

Appeals are not Reruns & other fascinating articles

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Appeals are not reruns.
But Fred Berry is Rerun.
That's the title of today's Lessons Learned column in the DJ, by David Balabanian. He points out that no trial is error-free, so that "in nearly every case, the losing party can accurately say the trial was rife with error. The question, then, is whether it matters." He then outlines four essential doctrines of appellate advocacy: Scope of Review, Substantial Evidence, Harmless Error and Failure to Preserve. He then addresses "who should handle the appeal?" and emphasizes two potential benefits of using a new lawyer: familiarity with appellate practice and unfamiliarity with the case. Finally, he advises not to split oral argument between lawyers.

Last Friday, retired 4/2 Justice Jeffrey King published a DJ article titled It's Inevitable That Errors Will Be Made At Trial, addressing "the risks and costs involved in the appellate process, what to look for in choosing a mediator and how best to prepare for the process."

Also in today's DJ, Ben Feuer's Appellate Zealot's column presents Is Dicta Binding Precedent in the 9th Circuit? He explains:
In United States v. Johnson, the court held that a "reasoned" and "published" judicial ruling on any issue "germane" to an appeal "becomes the law of the circuit, regardless of whether doing so is necessary in some strict logical sense." 256 F.3d 895, 914 (9th Cir. 2001). This rule means an opinion may have significantly more precedential effect coming out of the 9th Circuit than the same opinion would have coming out of any other federal or state court. Indeed, the so-called "well-reasoned dicta" rule is so divergent from most historical understandings of dicta that at least one out-of-circuit federal appellate judge, Pierre Leval of the 2nd Circuit, has publicly called the 9th Circuit's standard unconstitutional. 
Over at the NLJ, see Where Federal Agencies Find the Most—and Least—Respect in Circuit Courts, which notes:
The U.S. Court of Appeals for the Ninth Circuit may not be the best place for an agency to test its interpretation in an enforcement action. The study found that the circuit was the least deferential of the 13 federal appeals courts. The Sixth Circuit is the most deferential. In the Eighth Circuit, win rates for agencies were about the same with or without deference. 

Image result for justice cuellarImage result for star trek vulcanFinally, in San Diego Comic-Con lets attorney engage in a unique audience with novel legal questions, the DJ reports on Justice Cuellar's participation on a panel examining "how the legal system in Star Trek operates and compares to our own."

Thursday, July 21, 2016

Wanted: Your Input on proposed changes to the Rules of Professional Conduct

2/3's PJ Edmon chairs the State Bar's Second Commission for the Revision of the Rules of Professional Conduct. As she explains in the DJ this week:
The State Bar is in the midst of developing comprehensive amendments to the California Rules of Professional Conduct, which were last fully revised in 1987. Last month, the State Bar authorized a 90-day public comment period on 68 proposed amended and new rules, which are the result of 15 months of study by the State Bar's Second Commission for the Revision of the Rules of Professional Conduct. The project's anticipated completion date is March 31, 2017. By this date the entire package of rules must be adopted by the State Bar Board and submitted to the California Supreme Court for approval. 
See the proposed rule changes here and comment here.

Check out this Time article here, quoting Beds as saying, “Becoming a judge is a lot like being gelded.”

And see Three Supreme Court Insiders From Outside theBeltway, which includes L.A.'s Peter Stris. 

Monday, July 18, 2016

Clairvoyance helps prepare for oral argument

Today's Moskovitz on Appeals DJ-column is Successful Oral Arguments Require a Little Clairvoyance, about how preparing for oral argument involves prognosticating what's headed your way when you assume the lectern. Retired PJ Ardaiz says "Appellate judges hate it when you stand and read your brief. They may be polite and simply sit there or they will be abrupt but they won'e be listening." The bottom line: Anticipate questions and prepare answers that persuade in your favor.
Image result for mike farrell as john trapper
Image result for mike farrell as john trapperAnd here's a case, intriguing because it involves one John Trapper and someone named Farrell. M*A*S*H fans will make the connection.

For the latest installment of 'frivolous appeal sanctions,' click here.