Monday, October 16, 2017

9th Cir. Judge McKeown earns Leadership Award

Margaret McKeown (1980-81) Receives 2017 Legacy of Leadership Award

The White House Fellows Foundation and Association (WHFFA) is extremely pleased to announce that we will be presenting the 2017 Legacy of Leadership Award to Judge M. Margaret McKeown (1980-81). This is the highest award presented by the WHFFA, given in recognition of proven leadership, dedicated public service, and sustained support to the White House Fellows Program.
Full press release here.

Wednesday, October 11, 2017

Ninth Circuit Historical Society Presents

Ninth Circuit Historical Society Presents:
Thought-provoking programming with expert panels; moving educational Exhibits; poignant oral histories; meaty articles covering a range of topics from gender issues, to water rights, to courthouse histories – the Ninth Judicial Circuit Historical Society has it all – and you can too from the comfort of your own computer! Check out the brand new NJCHS website, Plus NJCHS programming goes live stream! November 6th join us with Berkeley Law Dean Erwin Chemerinsky; Stanford Profs. Lawrence Friedman and Jane Schacter; and moderator, Hon. Marilyn Hall Patel as they discuss the ramifications for constitutional law and American jurisprudence from the Supreme Court’s December 1942 Korematsu decision upholding the incarceration of Japanese-Americans. Just click on the link below at 6:15 pm (Pacific) on November 6th to watch!

A Year in Review at the Supreme Court of California

Check out A Year in Review at the Supreme Court of California

The 2016 – 2017 court year summary:

  • Justice Kathryn Mickle Werdegar retires after 23 years on the high court;
  • Court appoints Jorge E. Navarrete as Court Administrator and Clerk;
  • Former Chief Justice Malcolm M. Lucas dies at age 89;
  • Court files 87 written opinions;
  • Ethics committees enhance California’s robust judicial ethics infrastructure;
  • Court exerts “inherent authority” over the State Bar of California;
  • Civics engagement continues with full year of oral argument live streaming with captions in English and Spanish, outreach sessions with students in courtrooms, and a special session held in San Diego;
  • Mandatory e-filing begins;
  • Court highlights the results of the petition conference; and
  • Court grants Sei Fujii honorary posthumous membership in the State Bar of California.

Justice Nicholson Announces Retirement

Appellate Justice George Nicholson Announces Retirement

SACRAMENTO—Court of Appeal Associate Justice George Nicholson, of the Third Appellate District, announced his retirement effective Jan. 2 after 30 years on the trial and appellate bench.

[10/12 update: Today's DJ offeres Longtime 3rd District Appellate Court Justice to Retire and the MetNews has George Nicholson to Retire From Third District Court of Appeal.]

Judge Bev O'Connell RIP

Image result for beverly reid o'connellTerribly sad news this morning from a CD Cal press release:
Judge Beverly Reid O'Connell has died at age 52.

Chief Judge Phillips said the following: “Mere words are inadequate to express the depth of our loss. Judge O’Connell justly earned her reputation as a brilliant and exceptionally hard working judge. Those who appeared before her appreciated her wisdom and fairness, as well as her innovative use of technology in the courtroom. Her judicial colleagues and all members of the court family were vastly enriched by her generosity, energy and dedication to justice. She made an indelible mark on our court, and we mourn our friend and colleague.”

[10/12 updates: Today's DJ has Beverly Reid O'Connell, 1965-2017, calling her "an ebullient and tireless federal judge" and noting that she was Pepperdine's first Article III judge. PJ Bigelow is quoted, saying "Everyone loved her." The Recorder has Beverly O'Connell, Los Angeles Federal Judge, Dies at 52 and the MetNews has U.S. District Judge Beverly Reid O'Connell Dies: Was Jurist, Educator, Friend to Many.]

DJ Profiles Beds

Today's DJ presents No Wasted Space: Justice William Bedsworth is know for his eloquent, witty writing and mastery of the law, which begins: "A veteran of thousands of opinions and countless more jokes, William W. Bedsworth can point with ease to the case that brings him the most pride, and it has nothing to do with the sense of humor that defines him to so many attorneys nationwide." (That case is People v. Garcia (2000) 77 Cal.App.4th 1269 [sexual orientation is a protected class].)

“I tell people this is the best job in the system, and I don’t mean the legal system. I mean the solar system. I’m a pig in slop,” Bedsworth said in an interview in his chambers at the appellate court’s Division 3 headquarters in Santa Ana. “The law isn’t always interesting. But the facts, what people have done in their lives? It’s all just astounding to me.”

Speaking of outstanding legal writing, also check out Judge Curtis Karnow's article in today's DJ -- Legalish: Let us abolish it when we can -- another impassioned plea for judges and lawyers to drop the legalese and write in plain English.
Further, everyone's talking about Judge Kozinski's death penalty dissent here, which every Californian should read. The style and content are devastating.

Monday, October 9, 2017

Holiday today

Image result for columbus indiansToday is a "Columbus Day" (or, depending on your location, a holiday of some sort, e.g., Indigenous Peoples Day in L.A.) so State and Federal courts are closed for the holiday.
But this doesn't mean that the federal courts' computers aren't functioning!
For example, this morning at 4:05 a.m. the 9th Circuit's computer system dutifully posted on the Oral Argument Dates & Location page the identities of panels hearing cases next week. So don't think that just because it's a federal holiday that the courts are entirely shut down -- automated processes continue automatically!
Image result for rosie the robot
No holidays for robots.
Image result for seagulls on a pierAs for enjoying today's holiday, how about reading Beds' latest column The Steel Cage Mud Run, exposing the sartorial traditions of 4/3 and why oral argument is tough on the judges (even when the panel loos like "seagulls on a pier").

For dispatches from the distaff side of appellate practice, see Morning Coats and First Arguments: Female SCOTUS Lawyers on Breaking Barriers as well as Appellate Honchos Duke It Out in 'Blurred Lines' Copyright Case.

Thursday, October 5, 2017

Oral argument tips from the Rabbis

Pirkei Avot is a compilation of timeless Rabbinical ethical teachings and maxims from days of yore. (Ever hear "no pain, no gain"? Rabbi Ben Hei Hei said that: "according to the pain is the gain" [ch. 5, verse 21].) A selection from chapter 5 (or here) has particular relevance to appellate oral argument:
Image result for pirkei avotSeven things are in a clod, and seven in a wise man. The wise man speaks not before one who is greater than he in wisdom; and does not interrupt the words of his companion; and is not hasty to reply; he asks according to canon, and answers to the point; and speaks on the first thing first, and on the last last; of what he has not heard he says, "I have not heard"; and he acknowledges the truth. And their opposites are in the clod.

To restate this ancient wisdom for use at oral argument in plainer terms, the strong oral advocate:
(1) will allow the judges to speak first and to guide the conversation;
(2) will not interrupt the judges or opposing counsel;
(3) will not answer hastily, but instead will think before answering questions;
(4) will stay on topic and answer questions directly;
(5) will present argument in a logical order and answer questions in the order asked;
(6) will, if a question posed is not heard or understood, simply say, "Would you please repeat the question, your Honor," and
(7) will concede points that must be conceded.

2017 9th Cir. Conf. videos posted

Videos from 2017 Ninth Circuit Judicial Conference Program Now Available
Videos of educational programs presented at the 2017 Ninth Circuit
Judicial Conference, held July 17-20, 2017, in San Francisco, are now available. The theme of
the conference was "Law, Society, and Technology: The Challenges and Opportunities Ahead."
The videos can be accessed from the Ninth Circuit website:

Public Service Award for the Chief

Image result for lafla

The Legal Aid Foundation of Los Angeles will hold its 19th Annual Access to Justice Dinner on Thursday, October 19, 6:00 p.m., at the JW Marriott, L.A. Live in DTLA, where the Maynard Toll Award for Public Service will go to Chief Justice Cantil-Sakauye.

Wednesday, October 4, 2017

Retired J. Aldrich joins JAMS

Today's DJ reports Recently retired appellate justice joins JAMS in LA: Following his retirement from the 2nd District Court of Appeal, Richard D. Aldrich has joined the JAMS Resolution Center.

In other news: Justices Double Down on Resistance to Broadcasting SCOTUS Arguments

In news from the Cal Academy: CAAL urges rejection of proposals to split the 9th Circuit and CAAL elects two new members: Laura Brill and Nat Garrett.

Monday, October 2, 2017

2d DCA pro tem update

The following are currently sitting on assignment:
  • Judge Allan Goodman (Retired) of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Two until November 30, 2017
  • Judge Natalie P. Stone of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until November 30, 2017
  • Judge Halim Dhanidina of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until November 30, 2017
  • Judge Anthony J. Mohr of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Four beginning November 1, 2017 until December 31, 2017
  • Judge Kim Dunning of the Orange County Superior Court, will be sitting Pro-Tem in Division Five until November 30, 2017
  • Judge Michael J. Raphael of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Five until October 31, 2017
  • Judge Frank Menetrez of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until October 20, 2017
  • Judge Kerry  R. Bensinger of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until November 30, 2017

Happy First Monday!

It's the First Monday in October, so there are plenty of SCOTUS articles everywhere. Today's DJ offers The First Monday: Justice Ginsburg's prediction of a "momentous" term may prove to be quite an understatement, by Blaine Evanson and Taylor King of GDC.

The DJ also has PJ Gilbert's monthly column, titled The End (V.1): Did you know that some shows film alternate endings, to keep spoilers from getting out? All this electronic filing has me thinking maybe judges should do the same. His concern is with hackers gaining access to appellate courts' computer systems and seeing how cases will be resolved. Thus, taking a page from Hollywood, he ponders drafting multiple decisions:
So why not use this approach with Supreme Court and Court of Appeal opinions? It might take a little more time to draft multiple endings. And I suppose the endings would have to have a reasonable relation to the facts and law that precede them. The rule I usually follow is that the ending naturally falls into place by what precedes it. But I doubt hackers would be the type of people who read what precedes the ending that closely. In fact, does anybody, except maybe an annoying law professor? When I was a trial judge and received an opinion from the Court of Appeal on one of my cases, I always read the last page first. But due to a startling experience, I stopped doing that. I recall reading the last page of such an opinion and seeing that heartbreaking word “reversed.” I was crestfallen until I realized I had read the last page of the dissent.
And Moskovitz on Appeals presents 'Realist' or 'Formalist': Part I, about Judge Richard Posner:

The key to winning appeals is to get into the minds of appellate judges. This is quite difficult, in part because judges don’t say much about how they think about cases. Many “just do it” without much introspection. Others have some idea about what they do, but don’t want to talk about it. And many think they are doing one thing but are actually doing another. Reading their opinions helps, but not as much as you might suppose, because opinions are often written largely by research assistants. I learn how judges think mostly by inference and intuition: experience handling cases, talking to judges, watching them during oral argument — and by serving as a “judge” myself, during moot courts ... .
Posner is a breath of fresh air. He actually thinks about how he thinks. And about how other judges think. And then he writes about it, extensively and candidly. I’ve pored over his book “Reflections On Judging” for hours. Posner notes that “Lawyers find it difficult to get inside the head of an appellate judge,” and his book provides a peek into at least one judge’s thinking.
The October issue of OC Lawyer is also out, and that means more Beds! This time in Baseball for Trappists, in which he explains how he can watch an Angels game and do his day job at the same time: "I can read a full six pages of argument, two of the cases relied upon to support that argument, and double-check the language of the statute, and all I’ve missed is four foul balls, a visit to the mound, and an instant replay review."

Friday, September 29, 2017

9th Cir. program materials

Image result for 9th circuit sealMaterials for yesterday's Ninth Circuit Appellate Advocacy Program (in Billings, MT) are available here. Future programs will be held on Oct. 10 (in Spokane) and Oct. 12 (in Boise).

Check that spam filter

The ABA Journal reports Law firm's automatic deletion of spam emails is blamed for failure to file timely appeal:
Image result for spam filterA Florida law firm’s failure to appeal an order assessing attorney fees doesn’t constitute excusable neglect when its email system apparently perceived the order to be spam and erased it, a Florida appeals court has ruled.

The Aug. 10 decision by Florida’s First District Court of Appeal is being touted as a cautionary tale for lawyers, (sub. req.) reports.
Relatedly, today's DJ features Charlie Bird in Testing Extension Statutes in the Age of PACER, about Hamer v. Neighborhood Housing Services of Chicago, this SCOTUS term's hot appellate procedural case.
Hamer and amicus curiae the American Academy of Appellate Lawyers argue that the rule is a mandatory claim processing rule. The core of the argument is that only Congress can grant or deny appellate jurisdiction. Because 28 U.S.C. Section 2107(c) enacts no limit on the time a district judge can allow for an extension, the court of appeals has indestructible jurisdiction over an appeal filed within the time specified in an order issued under that statute.