Friday, November 17, 2017

2017 Court Stats now available!

Image result for statisticsThe Judicial Council of California's 2017 Court Statistics Report is now available!
Supreme Court
  • The Supreme Court issued 76 written opinions during the year.
  • The Supreme Court ordered 17 Court of Appeal opinions depublished in this fiscal year.
  • Percent of civil petitions for review granted = 6%; civil writs = 4%; criminal appeals = 2%

Courts of Appeal
  • Total contested matters for the Courts of Appeal totaled 20,217 made up of 13,296 records of appeal and 6,921 original proceedings.
  • Dispositions of appeals by written opinion totaled 9,967, appeals disposed of without written opinion
  • totaled 4,000, and appeals disposed of without a record filed totaled 2,045. Dispositions of original
  • proceedings by written opinion totaled 420, and original proceedings disposed of without written
  • opinion totaled 6,590.
  • Statewide, 8 percent of Court of Appeal majority opinions were published.
  • Reversal rate in civil appeals = 17%
  • Civil appeal publication rate is 15% statewide; the 3d was at 24% and the 2d at 11%
  • For civil appeal time on docket: 2/5 is the fastest and the 6th is the slowest (by median time); using the 90th-percentile disposition time, 2/5 is still the fastest and the 3d is the slowest
  • Odds of getting a written opinion from a writ petition (already tough!) has dipped even lower just about everywhere

The November 2017 issue of Litigation Update is now online, keeping you up-to-date on current case law. This issue includes the following case summaries and more: 


LA Lawyer's "closing argument" column this month features GMSR's Marc Poster in Dubitante: A Dubious Decision for Determining Appeals.

Today's DJ Friday Appellate Podcast presents: Such Inferior Courts?
Under Article III Congress may 'ordain and establish' lower federal courts, but can it direct them to 'promptly dismiss' certain pending cases? As SCOTUS considers the question, Ben Feuer (Cal. App. Law Group) says its answer might skew the balance of federal power and lead to a more politicized judicial process. Also, Mitchell Keiter (Keiter Appellate Law) argues that SCOTUS should reverse the 9th Circuit in 'NIFLA v. Becerra,' a free speech and abortion case granted cert Monday.
And see Justice Cuellar's A state Supreme Court justice’s open letter to AI

2d DCA pro tem update

Assigned Judges

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 January 31, 2018
  • 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 January 31, 2018
  • Judge Brian S. Currey of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until January 31, 2018
  • Judge Anthony J. Mohr of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Four until December 31, 2017
  • Judge Kim Dunning of the Orange County Superior Court, will be sitting Pro-Tem in Division Five until January 31, 2018
  • Judge Michael J. Raphael of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Five until January 19, 2018
  • Judge Kerry  R. Bensinger of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until January 31, 2018

In Recess with Justice Perren

The DJ's "In Recess" column today is Vocal Authority: Justice Steven Z. Perren has been performing in community musical theater and regional operas for more than two decades.

"Confirmed as a justice for the 2nd District Court of Appeal’s Division 6 in 1999, Perren has been singing just about all of his life and credits his father, who “sang for pennies as a child on the streets of New York,” for his musical gifts."

Thursday, November 16, 2017

Beds draws some conclusions

The Recorder presents Justice Bedsworth's monthly column Conclusions I've Drawn: "This month I won’t try to be funny. This month I will try something even tougher: I’ll try to be helpful." Below are his point headings, but be sure to read the actual article!
Conclusion 1: It’s never your assistant’s fault.
Conclusion 2: It’s probably no one else’s fault either.
Conclusion 3: What goes around comes around.
Conclusion 4: You want the things that come back to you to be good things.
Conclusion 5: “There is always a Diedrich case.” ("No matter how important the case you’re handling now, there is another one—at least equally important, probably more—coming out of the chute in the next go-round.")
Conclusion 6What you’re doing is very difficult. Cut yourself some slack.
Conclusion 7There is no greater engine on the planet for doing good than the American legal system.
Conclusion 8We have been allowed to live a life of incredible privilege.
Conclusion 9Only the good die young.

BHBA's An Evening With Judge Kozinski

Beverly Hills Bar AssociationThe Entertainment Law Section of the Beverly Hills Bar Association will be presenting An Evening with Judge Kozinski at DOMA restaurant on Monday, November 20.
Registration/Cocktails: 6:30 p.m. | Dinner & Program: 7:00 - 9:00 p.m.

IALA Annual Supreme Court Night Dec. 6

Register now for the Annual California Supreme Court Night and Gary Greene and the Big Band of Barristers: 2 Great Legal Ensembles, 1 Great Evening!

The California Supreme Court, Gary Greene & the Big Band of Barristers, and Soprano Maria Elena Infantino (1 CLE hr.)
Entrée Selection:
Chicken, Sausage & Peppers, or Eggplant Parmigiana - All dinners come with Antipasto, Mostaccioli, Spumoni, and Wine

Tuesday, November 14, 2017

1st DCA pro tem update

  • Judge Alison Tucher, of the Superior Court of California, County of  Alameda, will be sitting Pro Tem in Division Two through January 12, 2018.
  • Judge John William Kennedy, of the Superior Court of California, County of Contra Costa, will be sitting Pro Tem in Division Four until December 31, 2017.

Appointment hearings set for Dec. 14

Commission on Judicial Appointments to Consider Three Appointments to Courts of Appeal

Monday, November 13, 2017

Welcome to NextGen, 4th Circuit!

Image result for welcome aboardAs of last night, the U.S. Court of Appeals for the 4th Circuit has upgraded its CM/ECF to Next Generation filing. So now seven circuits are on the upgraded platform (1st, 2d, 4th, 6th, 8th, 9th, and 10th). The next to join will be the D.C. Circuit, on November 20.

Today's DJ features GMSR's Alana Rotter in First High Court Ruling Considers Appeals Deadlines, about Hamer v. Neighborhood Housing Services of Chicago.

Today's DJ also includes Trial Lawyers Honor Justice for Promoting Civility: The New California Chapter of the American Board of Trial Advocates award is named for 4th District Justice William W. Bedsworth.

Bedsworth was honored Wednesday in a surprise ceremony. He traveled to the conference thinking he was there to install the chapter’s new officers. He said the honor sent him “over the moon.”“Getting the award is just amazing. Have them name it after me? I don’t have words for that,” Bedsworth said.The William W. Bedsworth Judicial Civility Award is the chapter’s highest honor for justices and judges. It won’t be given annually, only when the board of directors deems it appropriate.

And welcome SCOTUS to the 20th Century! See The Supreme Court’s next (cautious, careful) move into the digital age: "A new era of cutting-age technology begins Monday at the United States Supreme Court, as the public for the first time will be able to access briefs and other case documents on the court’s website." See also Late to the Party, E-Filing Kicks Off at SCOTUS: Monday was a big day for the U.S. Supreme Court—the first day in the era of e-filing. And according to those who used the new system, it went off smoothly.

Friday, November 10, 2017

This is not an emergency

Image result for veterans day 2017The Ninth Circuit announces on its Emergency Operating Status page here that it is NOT "operating under emergency procedures" -- but today is a state and federal holiday, so the courts are closed. Be sure to thank a veteran!

And see Honoring The Veterans Of The Supreme Court

So, no opinions today. But if you're dying for an interesting appellate law case, then read this unpub from the 5th DCA here or this one here from 1/5.

Thursday, November 9, 2017

Cases of note

Taking inconsistent positions can be very dangerous, right? For a lesson in applied judicial estoppel, check out this case here.
Image result for beaten boxer

And, for an invited error story (involving manufactured appellate jurisdiction and appellate sanctions), see this case here (which SCAN noted earlier, but which is now published).

Wednesday, November 8, 2017

6th DCA APJ Rushing to retire

6th DCA APJ Conrad Rushing has announced his retirement effective December 4.

[For those keeping score at home, this is SCAN blog-post number 2000! If you went back and read all 2,000 posts, it would take ... a long time.]

Changes coming to online dockets?

Appellate practitioners in California are heavy users of the web-based California Courts Appellate Courts Case Information system to find and follow appellate dockets. Well, apparently, the system is (and probably always has been) under constant cyber-"attack" (of sorts) by web-bots and data scrapers. This puts a strain on the system, and the Judicial Council is exploring ways of fighting back. In particular, one change likely to be approved soon will affect something that most appellate lawyers probably do: bookmarking dockets for easy and direct access. (For example, suppose I want to follow appeal number B284432. Rather than access the main page and input the 2d DCA and then case number every time I want to check that docket, instead I can just create a bookmark to go directly to that docket, like this.) The anticipated change will disable all existing bookmarks. Fortunately, bookmarking will still be allowed, but it will need to be re-done after some tweaks in the system behind the scenes. And the new bookmarks are likely to be set up to expire in a year (after which they would need to be renewed). With any luck, this will be only a slight administrative hassle to users and a big help in protecting the system.

How annoying is the problem of robot hacking? Well, this week's stats for this blog as of right now show 1358 hits from Ireland, 250 from Italy, 42 from France, 32 Germany, 23 Ukraine, 14 China, 11 Spain, 10 Brazil, and 8 Portugal. Are those all California appellate lawyers on vacation? Sadly, not too likely. Instead, these are almost certainly foreign bots searching SCAN for ... something (credit card numbers? Social Security numbers?). Who knows. But I really doubt that over a thousand Irishmen (and women) are really interested in following SoCal appellate news....

Appellate practice webinar on identifying issues & more

H&L's Curt Cutting (aka the punitive damages blogger) will co-present a Strafford 90-minute webinar titled Appellate Practice: Identifying Issues for Appeal, Drafting Questions Presented, and Briefing the Issues on Nov. 29 at 10:00 a.m. PST.

The Constitutional Rights Foundation needs volunteers for its LA County Mock Trial Program tomorrow evening (Nov. 9) and on Nov. 13. Please sign up here.

Also: Save the date of February 20 for the Beverly Hills Bar Association's 8th Annual Litigation Awards Dinner at which 2/3's PJ Edmon will receive the Ron George Award for Judicial Excellence.

In the poor practice category, check out this case here, which includes this line: "For reasons we will discuss below, we conclude plaintiffs’ challenge to the trial court’s ruling on demurrer must be deemed forfeited in light of their failure to comply with mandatory rules of appellate procedure." What rules? Well, for starters, the appellant filed no CT or Appendix and no reply brief...

Urban legends tell of appellate advocates fainting at the lectern... But sometimes the stories are true, as this story, 3rd Circ. Fracking Case Case Put Off After River Basin Atty Faints reports: "[Counsel] collapsed at the podium in the middle of his argument, in which he was making a case for the commission’s jurisdiction over natural gas wells. He quickly regained consciousness and was attended to by medics."

At Above the Law, Mark Herrmann recently posted: Oral Advocacy: One Weird Trick To Help You Answer Questions'Yes' or 'no' are exceptionally good answers to questions. Try it sometime.

Not as jurisdictional as you thought...

The Hamer opinion is here!

Law360 reports High Court OKs Exceptions To Appeals Filing Deadline:
The U.S. Supreme Court on Wednesday ruled that a procedural rule setting a 30-day limit on extensions for filing appeal notices doesn’t deprive circuits of jurisdiction when litigants miss the extended deadline, reviving an age and gender bias appeal that the Seventh Circuit had eschewed because it was filed after that limit.

“Because Rule 4(a)(5)(C) … limits the length of the extension granted here, the time prescription is not jurisdictional,” the high court said. “The Court of Appeals erroneously treated as jurisdictional Rule 4(a)(5)(C)’s 30-day limitation on extensions of time to file a notice of appeal.”

Tuesday, November 7, 2017

Article on vacancy at the Cal Supreme Court

Today's DJ offers: Brown hasn’t chosen a new state high court justice — and may be in no hurry -- It’s not uncommon for Gov. Jerry Brown to wait as long as eight months to appoint a new state Supreme Court justice.

Some snippets:
  • More than two months after the retirement of state Supreme Court Justice Kathryn M. Werdegar, Gov. Jerry Brown has not named a successor.
  • But unlike the U.S. Supreme Court, which punted on several issues during the 14 months it had only eight justices, attorneys say California’s court functions just fine with a missing justice.
  • If his recent picks are any indication, Brown is happy to take his time. When Justice Goodwin H. Liu was confirmed in 2011, he filled a seat that had been empty for six months. In 2015, Leondra R. Kruger joined the court after an eight-month gap.
  • “Diverse” has been a watchword of Brown’s judicial appointments. Overall, his appointments have been nearly half female and nearly half ethnic minorities. Many of his appointees have been the “firsts” on their courts.

The article notes that 1st DCA PJ Jim Humes is thought by many to be the favorite for the seat.

DJ profiles 9th Cir. Judge Wardlaw

Today's DJ presents Sharp-Eyed Pragmatist: 9th Circuit Judge Kim McLane Wardlaw is known for her liberal streak and tough work ethic. Snippets below:

Next year, Wardlaw will have sat on the 9th Circuit U.S. Court of Appeals for two decades. She was nominated to the court by President Bill Clinton in 1997, two years after she assumed a judgeship in the Central District of California, also by Clinton’s nomination.
Image result for judge kim wardlawWardlaw was born in San Francisco to a staunchly Republican Mexican-American mother and a Democratic father of Scots-Irish descent. She was the first woman of Hispanic ancestry appointed to a federal court of appeals.
“Life experiences provide each of us with sentiments of right and wrong, fair and unfair, rational and irrational, just and unjust,” Wardlaw wrote in the article, adding that personal notions of justice should be tempered by an honest application of existing law.