Friday, April 21, 2017

Cameras & dogs @ SCOTUS?

Justice Alito Still Says No to Video Cameras at High Court, reports Law360, covering his comments made at the 3d Circuit's annual conference. Why? Because he thinks "it would change the nature of oral argument -- I have no doubt about it, whatsoever -- in the big cases." (Are there any other kinds of cases at SCOTUS?) He then cited an example of how C-SPAN used (or misused?) audio from the ACA arguments, which were then followed by a political commercial referencing the 'weakness' of the arguments. Justice Alito fears that this would happen regularly: "people would be producing sound bites or quirky little things that happened and would be immediately on cable news." "The value of oral arguments in the decision-making process would be diminished."

Justice Alito also discussed his late springer spaniel, Zeus.“I would put the red brief over here, and the blue brief over there, equal distance from Zeus. I would put a couple dog treats on both, and then I would let Zeus go. If he went to the blue brief, then we would reverse, and if he went to the red brief, then we would affirm.”

Thursday, April 20, 2017

Flatware conflict?

2/6's Justice Yegan begins today's opinion in In re B.M. like this:

Image result for butter knife
The Treachery of Images:
Ceci ne'est pas une couteau à beurre?
A common butter knife is designed to cut and spread butter. In the hand of a person bent on assaulting another, it may be a useful tool to inflict great bodily injury. Consistent with an express direction from the California Supreme Court (People v. McCoy (1944) 25 Cal.2d l77, l88-189) and time-honored rules on appeal, we conclude that the trial court’s factual finding that the instant butter knife was a deadly weapon must be affirmed on appeal. To the extent that In re Brandon T. (2011) 191 Cal.App.4th 1491 holds to the contrary, we respectfully disagree.
See also fn. 2 for a history lesson: Did you know that One Punch Man served as Abe Lincoln's body guard?

Whittier Law School to close

Image result for whittier law school
Image result for whittier law schoolToday's DJ reports Whittier Law School to Shut Down: Students Performed Poorly on Bar Exam, Had Few Job Prospects.
"Whittier Law School Dean Judith F. Daar told the students she disagrees with the closure and supports a lawsuit filed Tuesday to stop it."
The DJ also presents Whittier's closure not a total shock to law school experts, which noted that only 22% of the schools' first-time California bar exam takers passed the July 2016 test and less than 30% of its 2016 graduates secured permanent full-time legal jobs. Those 2016 graduates took out loans averaging nearly $180K.

The Recorder's story is Whittier Law School, Unable to 'Right-Size,' Will Close.

Wednesday, April 19, 2017

9th Cir. Judge Noonan RIP (1926-2017)

Court of Appeals Mourns Passing of Circuit Judge John T. Noonan, Jr.
SAN FRANCISCO – Judges of the United States Court of Appeals for the Ninth Circuit are
mourning the passing of Senior Judge John T. Noonan, Jr., a member of the court for more than
three decades. Judge Noonan, who had his chambers in San Francisco and was a longtime Berkeley
resident, died Monday (April 17, 2017) with his loving wife and family at his bedside. He was 90.

News Release here.

Exploring and Celebrating the Legacy of the Honorable John T. Noonan, Jr. (2014) here.

[4/20 update: Today's DJ offers U.S. 9th Circuit Court of Appeals Senior Judge John T. Noonan, Jr. dies at home. "Judge Noonan was a distinguished jurist and an eminent scholar with a particular focus on the historical development of moral concepts" -- 9th Circuit Chief Judge Sidney R. Thomas. The Recorder offers Judge John Noonan Jr., Stickler for Judicial Ethics, Dies]

OCBA Appellate Law Section Notes

SCAN's OC Correspondent Yen-Shyang Tseng reports on today's OCBA Appellate Law Section meeting: "A Crystal Ball: What the Future Holds for the Federal Judiciary,” presented by Dean Chemerinsky, Professor Jennifer Chacon (who clerked for Chief Justice Thomas) and Professor Leah Litman (who clerked for Judge Sutton and Justice Kennedy), all from UCI School of Law. Jimmy Azadian, the program chair, moderated the discussion.

As the title suggests, the discussion was about Dean Chemerinsky and Professors Chacon and Litman’s takes on the potential effect that the current administration will have on the federal judiciary, and Justice Gorsuch’s effect on Supreme Court jurisprudence. They are in general agreement with the consensus that Justice Gorsuch is as, or more conservative, with Justice Scalia – and therefore his appointment really only restores the Court to the same ideological balance that existed before Justice Scalia’s death.


Other interesting bits: First, no one expects Justice Ginsburg or Justice Breyer to voluntarily leave the bench, so the interesting question is whether Justice Kennedy will do so. Second, as far as the lower courts are concerned, the current administration already has the opportunity to shift the ideological balance in two of the Courts of Appeals, and potentially many more in the next few years. Third, Dean Chemerinsky estimates the current administration will have the opportunity to appoint up to about 25% of the entire federal judiciary. Fourth, regarding the path the Senate has now gone down with Judge Garland and the “nuclear option,” it is very likely that presidents will have an extremely difficult time having any nominees confirmed in the last two years of their presidency. And finally, no one on the panel supported the proposed Ninth Circuit split.

The next OCBA Appellate Law Section meeting will be Friday, May 19 with Justice Tino Cuellar speaking about advances in computing, AI, and big data.

9th Cir. 2016 Caseload Stats out!

The 9th Circuit has posted 2016 Caseload Statistics:

No surprise that the C.D. Cal. accounts for the most 9th Cir. filings! By a lot!

Tuesday, April 18, 2017

AAL Magazine profiles Justice Zelon

"I operate in a collegial setting in which we have the luxury of considering multiple points of view in determining the outcome of an appeal. The breadth of the docket means that I confront new issues all the time, which allows me to learn continuously."
The current issue of Attorney at Law (Downtown L.A. Edition) profiles 2/7's Justice Zelon "to discuss her legal career and her experience after more than 16 years on the bench." When asked about her courtroom style, she responded: "I try to be a respectful and attentive listener, and to ask questions to ensure that I understand the issues in the case as fully as possible. Just as I expect the attorneys to be fully prepared, I prepare as well so that our time together is well spent."

Also of note, 2/3's PJ Edmon will be moderating a Rutter program on Anti-SLAPP Motions at the Universal City Hilton on May 17.

Justice Goodwin Liu recently spoke at an event in Illinois, as reported here in the Daily Illini.

Monday, April 17, 2017

Statement of facts: Part I

Image result for storytellingThat the title of today's Moskovitz on Appeals column, about presenting what he calls "procedural" and "substantive" facts, both of which need to be a in brief. Procedural facts should begin with the complaint and end with the notice of appeal. In between, describe only the procedural events relevant to the issues on appeal. He also urges brief writers to "ditch the dates," meaning don't bother with specific dates that don't matter to the story.

Speaking of good stories, there's this one today...

And if you're looking for tips to draft a good story, consider Bryan Garner's Advanced Legal Writing & Editing program, April 26 at the Omni in DTLA.

Thursday, April 13, 2017

Top 40 Under 40

The DJ's Top 40 Under 40 is out this week, and the number of appellate practitioners on the list is again on the rise. This year's installment features:

  • Jimmy Azadian of Enterprise Counsel Group in Orange County, who just made the cut at age 39 and lists his practice as "Appellate and Constitutional Law."
  • Nat Garrett at Jones Day in San Francisco, age 38, who practices "Appellate Law" and has an upcoming SCOTUS argument.
  • J. Mira Hashmall, 39, leader of the appellate practice at Miller Barondess in Los Angeles, who practices "Appellate and Employment Law."
  • Anna-Rose Mathieson, 39, at California Appellate Law Group in San Francisco.

2d DCA 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 May 31, 2017.
  • Judge Michael Johnson of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until May 31, 2017.
  • Judge Kim Dunning of the Orange County Superior Court, will be sitting Pro-Tem in Division Five until May 31, 2017.
  • Judge Sanjay T. Kumar of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Five until April 30, 2017.
  • Judge Dennis Landin of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Five beginning May 1 until June 30, 2017.
  • Judge Michael Small of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until May 31, 2017.
  • Judge Douglas W. Sortino of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Eight until May 31, 2017.
Today's DJ features Gary Watt on Frivolous Appeals, in which he discusses the classic In re Marriage of Flaherty (1982) 31 Cal.3d 637, and concludes:
 It's complete lack of objective merit that makes an appeal frivolous. Given the reality that most courts treat the Marriage of Flaherty standard as conjunctive (requiring both illicit purpose and complete lack of merit), then so long as the appeal has some minimal merit, respondents may have to suffer some deliberately inflicted harassment and delay, with no real chance of obtaining sanctions for frivolity (appellant's inevitable loss aside). In contrast, where the conduct of appellate counsel is so outrageous that it eviscerates ethical rules, such minimal merit may not be enough to avoid sanctions. And as several of the more recent sanctions cases reveal, some attorneys insist on behaving very badly. So when it comes to frivolous appeals, you probably will know it when you see it.

Wednesday, April 12, 2017

4/2 goes back to high school

Court of Appeal, Fourth Appellate District, Division Two, Conducts Innovative Program and Oral Arguments at Coachella Valley High School

Presiding Justice Manuel A. Ramirez has announced that the Court of Appeal will conduct an innovative court-community program called “Outreach Plus” at Coachella Valley High School in Riverside County in cooperation with Principal Victor Uribe on Thursday, April 13, 2017.
The justices of the Fourth Appellate District, Division Two, will conduct oral arguments in the auditorium and answer questions from students after. In addition, the justices will meet with student body leaders before oral argument and visit with students in their classrooms after to urge students to stay in school and to inform them about the legal system in general, the Court of Appeal in particular, and legal career paths.
Of course the 2d District has been running its amazingly successful ACE program for over a dozen years now! See CRF's page here.

Speaking of 'schooling' justices, what should one do when a justice mispronounces a word? See So Awkward! What to Do When a Justice Butchers a Pronunciation From the Bench?

In The Recorder Justice Beds addresses "one of the petty indignities of the aging process: Learning About Pension Plans -- and as for expanding the court: he explains that he has "long advocated hiring a urologist for our court. We don't need another judge nearly as much as we need a good urologist."

In extremely serious news: Judge Sheila Abdus-Salaam of the New York Court of Appeals (aka New York State's highest court) was found dead today in the Hudson River. Police are investigating. See here. "Abdus-Salaam, 65, who lived in Harlem, had served on New York’s highest state court since 2013. She became the first African American woman to serve on the court since its formation in 1847."
[4/13 update: NYT says police are treating this as a suicide; NYLJ reports NY Legal Community in Shock Over Abdus-Salaam's Death.]

Technical difficulties?

The online docket system is displaying an error message:
Image result for technical difficultiesNotice: We are experiencing technical difficulties and as a result the Appellate Cases Website Data is not up to date. Case data was last updated on Tuesday, February 2, 2016 at approximately 1:00 p.m. We apologize for any inconvenience this may cause and are working to resolve this issue as quickly as possible.

This message is odd because there most certainly have been online docket updates since February 2016!!

[4/13 update: The docketing system is apparently taking a Spring Break: "database and email registration will be offline from 06:00PM Friday, April 14 to 06:00PM Sunday, April 16 for server maintenance. Your patience is appreciated."]

Tuesday, April 11, 2017

Jury trial denied? Take a writ!

"A denial of jury trial in a civil action is subject to pretrial writ review, the state Supreme Court ruled yesterday." So reports the MetNews (here) about Shaw v. Superior Court (THC-Orange County,Inc.). The DJ's article is High Court Clarifies Rule to Appeal Denial of Jury Trial.

Also, on the East Coast...

Judge Neil M. Gorsuch became the 101st justice of the U.S. Supreme Court on Monday morning after swearing-in ceremonies at the court and the White House, bringing the nation’s top judicial body to a full complement of nine sitting members for the first time in 419 days. 

Monday, April 10, 2017

Brown bagging with 4/3

The Association of Business Trial Lawyers, Orange County Chapter, Young Lawyers Division ("ABTL-OCC-YLD" for lawyers who can't help themselves!) is having a brown-bag lunch series at 4/3. Participants are invited to attend oral arguments in the morning and then lunch with a justice. On April 20 the justice will be Richard Aronson. This lunch series is open to ABTL-OC 2017 members who have been practicing for less than 10 years.