Friday, February 24, 2017

Can Appellate Outcomes Be Predicted?

Image result for crystal ball

Podcast: Can Appellate Outcomes Be Predicted? Sedgwick appellate specialist Kirk Jenkins "has compiled years of decisions by courts in Illinois and California, slicing the metrics every which way to create models that he contends give businesses a greater measure of predictability in litigation at every stage. He also blogs about trends he spots in the data, breaking down trivia like which California Supreme Court justices write the longest majority opinions in civil cases. In this interview, he explains how his model works, offers predictions on several important California Supreme Court cases, and explains why he sees analytics as the future."

Wednesday, February 22, 2017

2d DCA pro tem update

The following are currently sitting on assignment in the 2d DCA:
  • Judge Allan Goodman (Retired) of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Two until March 31, 2017.
  • Judge Rupa Goswami of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until March 31, 2017.
  • Judge Curtis Kin of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Five until March 31, 2017.
  • Judge Sanjay T. Kumar of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Five until February 28, 2017.
  • Judge Michael Small of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until March 31, 2017.
  • Judge Douglas W. Sortino of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Eight until March 31, 2017

Also of note: California Supreme Court justice ‘Tino’ Cuéllar to deliver Stanford’s commencement address.  

Yesterday's On the Move column in the DJ notes that Sheppard Mullin certified appellate specialist Karin Vogel, leader of the appellate practice group, has become a partner in San Diego.

California Needs Another Law School, State Legislator SaysAssemblywoman Sabrina Cervantes, D-Corona, introduces bill to create a law school at UC-Riverside

Tuesday, February 21, 2017

"Thinking outside the American appellate box"

That's the title of today's Moskovitz on Appeals column in the DJ, continuing a comparison of American versus British appellate procedures. Of particular interest is discussion of an experiment in the 3d District decades ago:
Image result for outside the boxone California appellate court actually did adopt a modified version of the British practice. In 1981, the 3rd District Court of Appeal (in Sacramento) selected a handful of civil appeals (each had very few issues) for an "expedited" program that limited argument in briefs to 10 pages. Oral argument took place 30 days after the briefs were filed - with no limit on how long a lawyer could argue. Most of the lawyers were quite happy with it, because it cut brief-writing time and cut the time needed to prepare for oral argument (because the case was still fresh in their minds), resulting in savings to clients. And they were delighted that disposition time (from filing notice of appeal to ruling) dropped by over 40 percent. The judges liked it because the briefs were more concise and focused on the one or two issues that mattered, and the oral argument usually did not end up taking more time than the usual 30-minutes allotted for non-expedited cases. The judges found that the oral argument was conducted at a higher intellectual level, and the program did not increase the total time they spent on a case. See Chapper & Hanson, "Expedited Procedures For Appellate Courts: Evidence FromCalifornia's Third District Court of Appeal," 42 Md. L. Rev. 696 (1983). The program ended not from want of success, but because the judge overseeing it had retired.
Maybe it's time for another experiment. 

On Thursday, Feb. 23 (1 p.m. CST) DRI's Appellate Advocacy Committee presents Washington v. Trump: Insights from Appellate Specialists, a on-hour teleconference discussing proceedings in the 9th Circuit. "Hear nationally recognized appellate practitioners comment on the unique procedural posture of the case, discuss oral argument techniques employed by the advocates, and provide insight on the Judges’ questions and the argument as a whole." DRI's March webcast will be Appellate Counsel at Trial: Protecting the Record and Putting Your Best Foot Forward.

The 2d DCA's Justices webpage has finally been updated to remove APJ Boren, and now reflects vacancies in Divisions 2, 3, 5, and 7.




Friday, February 17, 2017

Is the 9th Cir. really a "Court in Chaos"?

Law360 reports Trump Slams 9th Circ. As Court In ‘Chaos,’ ‘Turmoil’, which begins: "President Donald Trump slammed the Ninth Circuit on Thursday as a court in “chaos” and “turmoil,” claiming at a news conference that the court has been overturned by the Supreme Court “at a record number,” ..." The article goes on to present a wealth of statistics showing that the Circuit is "not overturned the most." UCLA's Professor Patrick Goodman (who supervises UCLAw students handling appeals) is in the article too:
Patrick Goodman“It is baffling and frightening that an American president would think nothing of trying to tear down the legitimacy of the Ninth Circuit, merely because he lost this round in court," Goodman said. "But people hear what the president says and reasonably assume it to be true, and he knows it.  We are talking about the legitimacy of our system of government, and so this kind of precedent-setting trash talk is not only selfish but ultimately very, very dangerous.”

Thursday, February 16, 2017

Reading & Viewing for the rest of the day!

The Winter edition of Appellate Issues (the publication of the ABA's Council of Appellate Lawyers) is available here. This is an appellate box of chocolates you will enjoy!

The U.S. Courts offers a video in honor of African American History Month, Moments In History: Remembering Thurgood Marshall.

The State Bar's Litigation Section presents the February issue of Litigation Update.

The NYT presents Older Judges and Vacant Seats Give Trump Huge Power to Shape American Courts. Currently, 112 of the 870 Article III judgeships are vacant. "Trump could fill more judicial vacancies than any first-term president in decades."

Also of note, Supreme Court makes Appointments to Commission on Judicial Performance: Justice Ignazio J. Ruvolo Reappointed.

The 2017 Civic Learning Award Winners (to celebrate public schools' commitment to teaching civics) have been announced (over 50 schools) and two (of the three) schools receiving Awards of Excellence are in SoCal: Eastman Avenue Elementary School in LA and Pacific High School in OC. Those schools will receive a visit from the Chief Justice of California!

Wednesday, February 15, 2017

Another Pregerson profile

Dean Pregerson at FBI in 2015.jpgToday's DJ profiles Judge Pregerson the Younger, i.e., Dean Pregerson (US District Judge Dean Pregerson's 20 years of rulings has changed lives, protected prisoners), son of 9th Circuit Judge Harry Pregerson. Deja vu? Today's DJ profile follows a profile by another DJ reporter just last month (Jan. 18, District Judge Dean Pregerson of Los Angeles on senior status, handling civil calendar). Before that there was one in 2007 (Feb. 12, For One Central District Judge, It's a Family Tradition).

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Q: How do you know when to petition for review?
A: When your decision contains one footnote pointing out a split of authority, and another footnote points out that any PFR would probably be granted and held pending a decision in a case on review. Like footnotes 2 and 3 here.
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Or another way to get to the Supreme Court may be a line like this (in an opinion today):
"Assuming the Skidmore holding still remains viable—a question we need not decide but which the Supreme Court might want to address...."
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"Ignorance of the law excuses no man -- from practicing it!" Addison Mizner

Tuesday, February 14, 2017

Defending the federal courts


  • Today's DJ features Dean Chemerinsky in The Rule of Law, about how "One of the most basic aspects of the rule of law is that no one, not even the president, is above the law." He urges all those in the legal profession to condemn attacks on the judiciary.


  • Similarly, the DJ runs Richard Hamar's articles 9th Circuit Deserves More Respect, about the Ninth Circuit, its history and statistics, and presidential disputes with courts. He too concludes that attorneys need to vigorously support the Circuit and the federal judiciary.
  • Standing to appeal is usually a no-brainer. But for an example of an appeal dismissed for lack of standing, click here.


Monday, February 13, 2017

Elwood Lui in Line for Appointment as Div. Two's Presiding Justice

That's the story in today's MetNews about how 1/1's Justice Lui "is in contention for elevation to the post of presiding justice of Div. Two" to "replace Roger Boren, who retired without public announcement, on Jan. 31." If appointed to Div. 2, J. Lui will have service in Divisions 1, 2 and 3!

The DJ reports that at last week's ABTL-LA program, Justice Anthony Kennedy emphasized "the importance of civil discourse in preserving America's democracy and national identity in a time of global tumult, and in an era when technology allows people to bypass traditional institutions and structures like the press and speak directly to the masses."

Anthony Kennedy official SCOTUS portrait.jpg






"People look to America to see if freedom works, and if they see a hostile, fractious, divisive, inimical dialogue, they will not be impressed."




Also in today's DJ, Judge Milan Smith pens The Role of the Blue Slip, which notes the roughly 111 Article III vacancies on the lower federal courts, including four on the Ninth Circuit. He explains: "One of the few remaining procedural devices that can actually defeat a judicial nominee is the Senate Judiciary Committee's so-called 'blue-slip rule.'"
This is how it works. When the president nominates an individual to a U.S. district court or court of appeal, the Senate Judiciary Committee sends a letter on light blue paper to the two home-state senators (regardless of party) asking them to take a position on the nomination. The senators check off the appropriate box - either approve or disapprove - and the blue sheet of paper is returned to the staff of the Judiciary Committee. A negative blue slip (or the failure to return a blue slip) typically dooms a nomination, affording home-state senators a de facto veto over judicial nominees to seats within their state. 
If Grassley continues to honor the blue-slip rule, the Arizona, California, Hawaii and Oregon senators will each have significant influence on the selection of the individuals who will be nominated to fill the vacancies on the 9th Circuit. In its current incarnation, the blue-slip rule affords them a de facto veto over anyone that President Donald Trump nominates to judgeships within their respective states, rendering the need for pre-nomination consultation with home-state senators particularly important. As history suggests, however, the blue-slip rule could transform in an instant. The rule's character and existence fall within the discretion of the chair of the Senate Judiciary Committee. And, in this tumultuous political environment, few of the Senate's traditions appear to be immune from change. 

Finally, today's DJ also profiles LASC Commissioner Timothy Weiner. SCANworthy? You bet: The profile is titled An Appellate Veteran, LA County Commissioner Timothy Weiner Values Social Aspects of Job, and notes how he spent nearly his entire career in the state AG's office arguing and preparing appellate cases.
"It's very hard to get a sense or the feel of a courtroom from a cold record," Weiner said of his previous work. "One of the best parts of this job is getting to serve as the fact-finder because I get to make those credibility determinations, I get to observe people and their body language, how they're talking, who's representing their case." 

Thursday, February 9, 2017

State Bar Litigation Section 9th Cir. webinar

An Inside Look
at Ninth Circuit Motion Practice
Friday, March 3, 2016, 12 noon - 1 p.m.
This program offers 1 hour participatory MCLE credit and 1 hour legal specialization credit in Appellate Law
 This webinar will give both new and experienced attorneys a comprehensive overview of motion practice in the Ninth Circuit Court of Appeals, insights into how motions are decided, and important tips for crafting and opposing motions. Two of the presenters have handled motions both as Ninth Circuit Staff Attorneys and as practitioners before the Court, and the other presenter currently serves as a Staff Attorney in the Motions Unit at the Court. Speakers: Kathleen Boergers, Jessica Perry and Leah Spero

You must register in advance to participate

Confirmation hearings! Webcast to begin at 10:00 a.m.

Hearings on Three Appointments to Courts of Appeal to be webcast starting @ 10:00 a.m.

Click here to watch the Dato, Fields, Meehan hearing.

Afternoon update from The Recorder: Commission Confirms Three Calif. State Appeals Judges:
The Commission on Judicial Appointments unanimously approved the nominations of San Diego County Superior Court Judge William Dato and Riverside County Superior Court Judge Richard Fields to the Fourth District Court of Appeal. Fresno County Superior Court Judge Kathleen Meehan was confirmed on a 3-0 vote to the Fifth District Court of Appeal.
[2/10 update: The DJ has Justices Confirmed Easily to State Appellate Court]


Image result for beast mode
"Former Riverside County Superior Court Presiding Judge Sherrill A. Ellsworth called Fields, a former colleague, a prolific worker and eater. "As long as you feed the beast, he will work like a beast," Ellsworth said. "I could not recommend anyone higher than I recommend my friend Rick Fields."

Appellate grab bag...

The Recorder offers: Why the Ninth Circuit Should Not be Split.

The DJ presents 9th Circuit Stream Most Watched in Court History, about how over 136,000 people watched the travel ban argument. Judge Kozinski, who made streaming arguments available when he was chief judge, said, "It is rewarding to find out people actually use them. If nobody watched, I would be disappointed."

Image result for grab bagThe DJ also features CAFA Conundrum: Diversity is What Counts, by Reed Smith appellate specialists Jim Martin and David de Jesus, about the controversy over the scope of CAFA's appellate review provision, and noting that the 9th Circuit recently joined "the 5th, 6th, and 8th Circuits in holding that CAFA's appellate review provision is limited to remand orders where a party claims diversity jurisdiction under CAFA" in Chan Healthcare Group, PS v. Liberty Mutual Ins. Co., 844 F.3d 1133 (9th Cir. 2017).

And see in the DJ Lawyers Form Jazz Music Group, Enjoy Fun, Friendship, about the quartet known as the Singers-in-Law, which plays at many local bar events, sometimes accompanied on the piano by PJ Gilbert, whose wife Barbara is one of the quartet. See them next at Vitello's in Studio City on March 3. (Yes, that Vitello's.)

Wednesday, February 8, 2017

Justice Cuellar visits CSUN

Justice Cuéllar will be speaking at Cal State Northridge on February 16 from 12:30 to 1:45 at the University Student Union. Rather than a lecture, he will answer questions from the audience.


Speaking of upcoming events with appellate justices participating, IALA and LACBA Senior Lawyers Section team up to present a joint Trailblazer Awards/Nostalgia Night, on March 2 at the Casa Italiana (1051 N. Broadway, DTLA) including a tribute to the late Justice Vaino Spencer by retired Justice Mallano. And Selma Smith will be presented with a Trailblazer award by Justice Gilbert. Sign up here.

Also of note, see California Legal History vol. 11:2016, which focuses on UCLA Law School and includes essays by Selma Moidel Smith (noted above) as well as Justices Epstein, Lui, and Perren and Judges Kozinksi and Nelson. (And a paragraph by Justice Fybel.)