2d DCA pro tem update

 The following judges are currently sitting on assignment in the 2d District:

• Judge Corey G. Lee of the San Bernardino Superior Court will be sitting Pro Tem in Division Five until June 15, 2024     
• Judge Tony Raphael of the San Bernardino County Superior Court will be sitting Pro Tem in Division Seven until June 14, 2024  

4th Dist. RA program

The Appellate Law Section of the Orange County Bar Association presents an in-person MCLE program on Thursday, May 2, 2024, 12:30 to 1:30, titled Ask Us (Almost) Anything: A Discussion with Judicial Attorneys from Southern California State Appellate Courts, featuring four research attorneys.

SCOTUS Oral Argument milestone

Law360 has Lisa Blatt Becomes 1st Woman To Argue 50 High Court Cases -- "Williams & Connolly LLP partner Lisa Blatt began her historic 50th oral argument in front of the U.S. Supreme Court with a chuckle Tuesday. ... Blatt, who first argued in front of the Supreme Court in 1996 while an assistant at the U.S. Solicitor General's Office, boasts a 41-5 win-loss record at the high court, including a 13-5 record since entering private practice in 2009, making her not only the Supreme Court bar's most prolific female advocate, but also one of its most successful attorneys in general."

Called out for incivility

2/4 publishes this opinion here today (in an anti-SLAPP appeal) that calls out incivility (on page 85): 

we note that Norman’s opening brief in this appeal was correctly characterized by defendants as “bombastic,” and filled with “ad homimem [sic] attacks.” .... These quotes constitute a mere sampling; there are many more instances of similar derogatory phrasing scattered throughout Norman’s 60-page opening brief. We find the unnecessary commentary in Norman’s brief lacking in professionalism.  We expect civility and decorum from counsel who appear in this court, and this brief falls short of that expectation.  We trust counsel will meet these standards in the future.

On the federal side, Law360 has Using Rule 23(f) To Review Class Certification Orders

IG for SCOTUS?

 

Law360 has Dems Propose Inspector General For High Court, Judiciary

Democratic lawmakers introduced a bill Thursday that would create an inspector general's office for the judicial branch to investigate and report on allegations of misconduct lodged against U.S. Supreme Court justices, as well as judges throughout the federal judiciary.

Law.com has Justices Agree the 'Shadow Docket' Needs Fixing—But Not How

 

LA City Atty Office opening

The Office of the Los Angeles City Attorney has a Deputy City Attorney opening in the Civil Liability Appeals Division. The primary qualifications for this position are excellent legal research and writing skills and a serious interest in full-time appellate work. Attorneys interested in applying should submit their cover letter, resume, and writing samples in ONE (1) MERGED PDF FILE specifying #3396 – DCA – CIVIL LIABILITY APPEALS, via email to atty.recruit@lacity.org. Questions? Please email atty.recruit@lacity.org.

J. Newman v. Fed Circuit

Law360 has three articles today about Judge Newman's fight with the Federal Circuit:

Fed. Circ.'s Fight With Newman: A Year In Review

Fed. Circ.'s Competency Feud With Newman Turned Personal

A year after the Federal Circuit publicly acknowledged its investigation into U.S. Circuit Judge Pauline Newman's mental and physical competency, the nonagenarian still refuses to follow the court's medical testing orders and remains determined to reclaim her seat on the bench.

Judge Pauline Newman's Year In Her Own Words

April 14 marks the one-year anniversary of when the Federal Circuit confirmed an unprecedented investigation into whether U.S. Circuit Judge Pauline Newman was mentally and physically competent to remain on its bench, and the judge has not been allowed to hear cases during that time.

The 96-year-old told Law360 on Wednesday that she had considered giving up her seat as an active judge on the Federal Circuit before the investigation began, but that the way her colleagues have tried to force her out is making her take a stand on principle.

"No transcript, no appeal"

Today's LA Times has No transcript, no appeal: California courts face ‘crisis’ over lack of records

• California’s highest-ranking court officials are warning of a growing “constitutional crisis” playing out across the state’s judicial system, as hundreds of thousands of hearings are held without a precise record of what occurred.
• The problem is a shortage of public court reporters, the stenographers who transcribe proceedings, and state law that bars electronic recording devices from being used in certain types of hearings — even when a reporter isn’t available.
• Last year, 332,000 hearings occurred without a court reporter or an electronic recording device in Los Angeles County Superior Court alone. California Chief Justice Patricia Guerrero warned in a speech last month that, statewide, about 133,000 such hearings occurred in a single three-month period.

"Briefing Deficiencies"

More and more often decisions are including sections titled something like "Appellants' Briefing Deficiencies," as the 5th does in this unpub today. What upset the court?

An opening brief on appeal must provide “a summary of the significant facts limited to matters in the record.”  (Cal. Rules of Court, rule 8.204(a)(2)(C).)  The summary in appellants’ opening brief is mostly cut and pasted from their posttrial brief to the trial judge, which was filed long before the record on appeal was prepared.  Appellants neglected to update the record citations from their earlier brief, which were based on the court reporter’s daily transcripts.  Consequently, none of the “RT” citations in appellants’ opening brief correspond to the reporter’s transcript in the record on appeal.  To put it bluntly, the “RT” citations are useless.  Many of appellants’ substantive arguments are also cut and pasted from their posttrial brief, so the indecipherable “RT” citations appear throughout the opening brief. 

Appellants’ opening brief is also replete with record citations using the unexplained abbreviation “TE.”  We can deduce that “TE” stands for Trial Exhibit, but the citations merely reference the exhibit number, e.g., “TE 184.”  Appellants do not indicate where within the 1,832-page clerk’s transcript any of the exhibits are located.  The exhibits are not presented in numerical order within the clerk’s transcript, nor are they listed in numerical order in the index.  Many of the exhibits are lengthy, but appellants never explain what portions of the cited exhibits are germane to their assertions.  Appellants even cite to trial exhibits that were not included in the record on appeal.

Furthermore, appellants present as facts certain positions rejected by the trial court and thus inconsistent with the trial court’s ultimate findings.  This is another consequence of the cut-and-paste approach to appellate briefing.   

Appellate DQ law / Uniform admission stories

On the AB2125 front, The Recorder has Lawmakers Advance Bill to Allow Disqualification of Appellate Justices

And the NLJ has Uniform Bar Admissions Rule for US Trial Courts Draws Opposition from Circuit, District Judges

Appellate courts already operate under a uniform admissions rule.

Under the federal procedure rules, the only requirement for those seeking to argue in federal appeals courts is that they be admitted to the highest court of any state.

But [Third Circuit Judge Kent] Jordan said the admissions process for appellate and trial courts are not comparable because the courts function differently.

“I can tell you there is a gigantic difference between having people… parachute in and do an appellate argument, and [having] somebody say, ‘I want to appear in federal court all the time. I’m going to establish an employment law practice in the federal courts and I’m not going to take your state bar,’” he said. “I just think you’re getting a push back for a reason.”

'Meet' Justice Wilson tomorrow at noon (virtually)

BASF's Appellate Law Sections presents a (virtual) Roundtable Discussion with Justice Monique Langhorne Wilson on April 10 at noon.

Law360 has Attys Have Duty To Defend Judges, ABA President Says

The American Bar Association's president on Monday warned that attacks on judges and the U.S. court system have skyrocketed in recent years and urged lawyers to stand up for the judicial process by defending judges who are unjustly criticized.

Ronald Davis, the director of the U.S. Marshals Service, in February told the House Judiciary Committee's Crime and Federal Government Surveillance Subcommittee that over the last three years the number of threats against federal judges has more than doubled, in addition to threats against prosecutors and other officials in the courts.

Circuit split quantification

Law.com has Has a Law Professor Found a Better Way to Quantify Circuit Splits for the Justices? -- Stanford's Joseph A. Grundfest says his percentages-rich method involves more than simple "nose counting."

U.S. Supreme Court lawyers for decades have known of the importance of highlighting “circuit splits” when seeking the justices’ review in a case, but a Stanford Law School professor says there’s a better way to highlight disagreement among lower courts than simple “nose counting.”

In a new paper, Joseph A. Grundfest has debuted a more sophisticated methodology for quantifying the scale of disagreement among lower courts that he says could prove useful for lawyers petitioning for Supreme Court review—and could even come in handy for those opposing such review.

The premise of Grundfest’s new methodology is simple. Rather than just tallying the number of lower federal appeals courts on each side of a legal question, lawyers applying the method would take account of the “market share” of the circuits implicated in the split to more accurately measure the significance of the conflict.

According to one study, around 400 circuit splits arise per year.

Law.com also has 6th Circuit Judge Worries Court AI Disclosure Rules Could Deter Use of the Tech -- "[S]houldn’t the output stand on its own—whether it was drafted by a robot, a first year associate, or an experienced partner?” said Judge John Nalbandian.

Breyer to 1st Cir.

 

Bloomberg Law has Retired Justice Stephen Breyer Plans Return to First Circuit

• Retired US Supreme Court Justice Stephen Breyer plans to return to the US Court of Appeals for the First Circuit in the fall to hear cases while on senior status.
• Breyer served on the First Circuit from 1980 to 1994, before he spent more than 27 years sitting on the US Supreme Court. Since his 2022 retirement, he has taught at Harvard Law School and written a book on the US Constitution, and has made several public appearances at First Circuit events.
• The late Justice Sandra Day O’Connor and Justice David Souter also heard cases following their retirements.

CLA's CAC wants you!

CLA's Committee on Appellate Courts is seeking new members! Applications are due by May 31, and can be submitted via the online portal. To learn more information about the CAC, please see below and visit the CAC webpage.

Established by the State Bar in 1970 and made a State Bar standing committee in 1973, the Committee on Appellate Courts is now a standing committee of CLA’s Litigation Section. Its members are drawn from diverse sources including law firms, solo practitioners, defense, and prosecution offices handling criminal appeals, appellate court research staff, and law school faculty. In furtherance of the administration of justice, the charge of the committee is as follows:

• provide members of the State Bar of California with quality continuing education on appellate practice, including programs that meet the standards for the State Bar’s appellate specialization requirements;
• comment on proposed changes to court rules in state and federal courts that affect appellate practice in California; and
• when possible, initiate or support programs for providing pro bono appellate assistance, mentoring inexperienced appellate attorneys, helping pro se litigants on appeal, and making legal education programming affordable for all attorneys, and other special projects.

CAC is committed to including attorneys from a broad range of subject areas and practice types, including civil and criminal appellate practitioners, large firm attorneys and solo practitioners, government, court, and non-profit attorneys, and academics. In selecting new members, the Committee also seeks diversity in terms of practice area, geographic location, ethnicity, and gender/gender identity.

CLA Appellate Summit only a few weeks away!

The 2024 Litigation and Appellate Summit is just around the corner!

APRIL 25-26, 2024 | LONG BEACH, CA | FULL DETAILS | REGISTER HERE

Don’t delay!  The Litigation Section's Eighth Annual Litigation and Appellate Summit is in less than two weeks!  Come hear from our keynote speaker, Martin Estrada, the United States Attorney for the Central District of California. The program will also include Chief Justice Patricia Guerrero as a featured speaker.

The Summit will have programs on effective and ethical use of artificial intelligence in litigation, legal developments in 2024, a #MeToo litigation lookback, a live broadcast of the Portia Project podcast and much more!

There will also be a networking reception with hosted drinks and hors d’oeuvres immediately following the last program on Thursday.  As part of this reception, the Committee on Appellate Courts will present its 2024 Appellate Lawyer Hall of Fame award to Margaret Grignon in a ceremony beginning at 5:30 p.m. 

Earn up to 13 hours of MCLE credit, including credits for elimination of bias, legal ethics, and the new technology in the practice of law requirement, 8 hours of which qualify for legal specialization in Appellate Law.

New judges, new views?

Law.com has Biden's Judges Have Made the Judiciary More Diverse. How Are They Shaping the Law?\

While it’s likely too early to see Biden’s judges creating major shifts in the law, as his first term comes to an end, court watchers say they see signs his appellate picks may be using their personal experiences in analyzing cases. Unlike previous administrations that have mainly put prosecutors and Big Law attorneys on the bench, Biden has nominated individuals with civil rights advocacy and public defense backgrounds. ...

Biden broke President Barack Obama’s record for appointing the highest number of circuit judges with public defense backgrounds to the bench. And breaking from past administrations, Biden has tapped numerous appellate judges who worked at civil rights organizations such as the American Civil Liberties Union and reproductive rights groups such as Planned Parenthood.

On Law360, Larry Ebner has Requiring Leave to File Amicus Briefs is a Bad Idea

• the U.S. Judicial Conference's Advisory Committee on Appellate Rules will be considering a recommendation to require leave of court for the filing of merits-stage amicus curiae briefs in federal courts of appeals.
• This proposal, offered by the Advisory Committee's Amicus Subcommittee, would amend Federal Rule of Appellate Procedure 29(a) by eliminating the current, widely used practice of filing an amicus brief "if all parties have consented to its filing."

The amicus subcommittee's proposal is exactly the opposite of the U.S. Supreme Court's decision to amend its own rules, which as of Jan.1, 2023, allow the filing of petition-stage and merits-stage amicus briefs without either the parties' consent or the court's permission.




Read more at: https://www.law360.com/energy/articles/1820732?nl_pk=301b3dbb-22fd-4238-a126-3cd81f593d7a&utm_source=newsletter&utm_medium=email&utm_campaign=energy&utm_content=2024-04-05&read_main=1&nlsidx=0&nlaidx=10?copied=1

Read more at: https://www.law360.com/energy/articles/1820732?nl_pk=301b3dbb-22fd-4238-a126-3cd81f593d7a&utm_source=newsletter&utm_medium=email&utm_campaign=energy&utm_content=2024-04-05&read_main=1&nlsidx=0&nlaidx=10?copied=1

Appellate bestseller coming?

 

The NLJ reports Retired Justice Kennedy To Release Memoirs This Fall -- Anthony Kennedy will offer his perspective on "major decisions on abortion, affirmative action, freedom of speech, gay marriage, separation of powers, and federalism," Simon & Schuster stated.

Retired U.S. Supreme Court Justice Anthony Kennedy will release a two-volume set of memoirs this October containing an “inside account” of major cases from abortion to affirmative action during his three decades on the court, according to his publisher.

The first book will cover Kennedy’s upbringing in Sacramento, California, and his journey to the U.S. Court of Appeals for the Ninth Circuit. The second will be dedicated to Kennedy’s time as a Supreme Court justice following his confirmation in 1988 and will feature Kennedy’s perspective on “major decisions on abortion, affirmative action, freedom of speech, gay marriage, separation of powers, and federalism,” Simon & Schuster stated.

• Kennedy’s memoirs will run 608 pages
• The price of Kennedy’s complete hardcover memoirs will be $57.99

Pro tem updates

The following judges are currently sitting on assignment in the 2d District:

• Judge Corey G. Lee of the San Bernardino Superior Court will be sitting Pro Tem in Division Five until April 30, 2024     
• Judge Tony Raphael of the San Bernardino County Superior Court will be sitting Pro Tem in Division Seven until April 26, 2024  

The following judges are currently sitting on assignment in the 1st District:

• Judge Arturo Castro of Alameda County Superior Court will be sitting pro tempore in Division One until April 30, 2024.
• Judge Cindee F. Mayfield of Mendocino County Superior Court will be sitting pro tempore in Division Two until May 7, 2024.
• Judge Christopher Hite of San Francisco County Superior Court will be sitting pro tempore in Division Four until May 31, 2024.

Writing tips; panel composition articles

Law360 has Former Minn. Chief Justice Instructs On Writing Better Briefs

• Be a good writer. -- To be a good brief writer, you must first be a good writer. That means using topic sentences in most paragraphs and transitions from one paragraph to the next. Shorter sentences with fewer clauses are better than longer sentences with lots of clauses.
• Know your audience. -- It is important that you know your audience. In other words, are you writing a brief for an error-correcting court, or are you writing to a precedent-setting court?
• Spend time wisely on the standard of review. -- The standard of review really matters when it matters. 
• Be complete and accurate with the record.
• Be intentional with the facts.
• Use a summary of argument.
• Does your brief need some legal context?
• Lead with the best.
• Be clear about what is an alternative argument.
• Be mindful of your tone.

Today's DJ's Exceptionally Appeal column is Predicting appellate outcomes based on the panel, discussing two recent law review articles: Klatchko & Keefer, Judicial Backgrounds Influence the Standard of Review, 55:1 Univ. Pac. L.Rev. 1 (Nov 2023) and Cohen, The Pervasive Influence of Political Composition on Circuit Court Decisions, Harvard Discussion Paper No. 1109, Feb. 2024.

April Fools?

 In today's April 1 DJ, PJ Gilbert has April Showers, where he notes that:

The California Legislature and a few forward-thinking state legislatures elsewhere have hired Professor Bryan Garner, editor of Black’s Law Dictionary, to redraft past legislation and to aid in the drafting of new legislation. This, occasioned by the complaint in some quarters, that much of the legislation is unintelligible. One goal is to limit the number of words in sentences to no more than 25 – yes, count them, 25 words. No longer will we have to read a single sentence of 177 words as found in Penal Code section 1203.2a.

Numerous Supreme Courts and appellate courts in various states including California are set to adopt new rules. Among them are the following: a. reasonable page limits for opinions: 25 is a good maximum. In unusual circumstances, that limit may be exceeded by a majority vote of the particular court. b. Opening paragraphs must be written in clear, concise language that informs the reader what the case is about. The opening paragraph or second paragraph shall include the holding, as a legal principle, not simply a factual conclusion. ...  c. Opinions will clearly inform readers what they may and may not do. d. Except in unusual cases, opinions will be issued with reasonable promptness.

And Myron Moskovitz has Screening The Good From The Bad Before Filing an Appeal, about his screening process when evaluating a new matter.

Remember to click the "include footnotes box" when doing a word-count, or else you'll end up in a situation like this one (or worse) reported on Law360: Attys Dodge Sanctions Over Microsoft Word Error, Judge Rules

Also of note from Law360: Hogan Lovells Vet's High Court Debut A Study In Contrasts