Welcome Judge Salter

Orange County Superior Court Presiding Judge Kim Dunning, herself a former 4/3 research attorney, administered the oath of office this morning to her newest colleague on the bench, Judge Glenn Salter.

We couldn't be more proud of Glenn, or happier for him.  Congrats!

Judge Friedman to JCC

Recently retired LA Superior Court Judge Terry Friedman has been appointed to the Judicial Council of California, the CJ announced.

(Photo from franpavely.com shows Judge Friedman at far right, with (left to right) state senator Pavley, former state senator Shiela Kuehl, and CJ George.)

Justice Kennard on 90-Day DL

The Recorder reports that "California Supreme Court Justice Joyce Kennard will undergo surgery within the next week for an abdominal growth believed to be benign, forcing her to miss the next three oral argument calendars.

"An avid and persistent questioner, Kennard would still get to participate by viewing videotapes of the arguments, unless the parties refuse to stipulate to her absence. If that happens, Chief Justice Ronald George said he would need to decide on a case-by-case basis whether to continue the matter or appoint a pro tem justice from the appellate courts to hear it instead.'"

(h/t Ben Shatz)

Welcome the New 4/3 Managing Attorney

Now that Judge Salter is leaving the 4/3 for the OC Superior Court (North Court in Fullerton), he will be followed as 4/3 managing attorney by Nancy Kendrick. 

OCBA Appellate Law Section members will remember Nancy, one of Presiding Justice David Sills' research attorneys, from last fall's "Court of Appeal:  Then and Now" panel discussion.  She brings a wealth of knowledge to the position, and we remain in superb hands.  Congrats Nancy!

4/3's Glenn Salter Appointed to Bench

Glenn Salter, managing attorney of the 4/3, has been appointed by Governor Schwarzenneger to the Orange County Superior Court.

Glenn has been a good friend to the OCBA Appellate Law Section.  He has given well-attended and much-appreciated presentations on appellate court procedure and writ practice.  He has given similar presentations to lawyers across the state at the State Bar Annual Meeting.

We are thrilled beyond words for Glenn here at the 4/3.  We will deeply miss him, his mastery of appellate procedure, and his vast institutional memory.  In many ways, he has been the core of the court.  Our loss is the Superior Court's gain.

Judges, Judging, Decisionmaking, and Neuroscience

Horvitz partner M.C. Sungaila has an intriguing article in today's DJ on the neuroscience of decisionmaking.  Drawing from Jonah Lehrer's "How We Decide," she makes some counterintuitive yet ultimately persuasive claims: 

• Practical reasoning needs the constraint of emotion
• Intuition is not irrational; it's super-rational
• Sympahy informs moral judgments
• Dissent improves decisions

M.C. concludes that these observations apply equally to judicial decisionmaking . . . and to "the judicial selection process itself."

I've omitted her fascinating examples.  Pick up the DJ to read her article and learn more.  Good stuff!

Appellate Sentencing Review

Appellate courts should exercise more independence in reviewing criminal sentences, argues Professor Michael M. O’Hear in his article, "Appellate Review of Sentences:  Reconsidering Deference," which appears in the latest William & Mary Law Review.  (h/t Concurring Opinions)

Newest Supreme Court Candidate

The Chicago Tribune reports that President Obama has added 7th Circuit Judge Ann Claire Williams to his short list of potential US Supreme Court nominees.  (h/t How Appealing)

New BAP Judge

"The Ninth Circuit Judicial Council has elected Chief Bankruptcy Judge Ralph B. Kirscher of the District of Montana to the Bankruptcy Appellate Panel," reports the MetNews.

Federal Judiciary Reception

Also for your calendar (and also courtesy of Ben Shatz), the Federal Bar Association will honor the federal judiciary at a reception at LA City Hall on May 13, 2010.

The always-informed and ever-helpful Ben Shatz passes along these upcoming MCLE events for appellate lawyers:

4/30 -- Pincus 9th Circuit Practice Seminar

5/11 -- Rutter Group Civil Writs

5/11 -- LACBA ACC program on Attorneys' Fees Appellate Issues

5/14 -- CEB Advanced Appellate Seminar

Note:  The Rutter Group seminar features the 4/3's own Justice William Rylaarsdam and Kendall Caudry, a senior attorney for the 2/1.

Catsouras Stands

The California Supreme Court denied review of the 4/3's decision in Catsouras, which held, according to the Met News, that the family of a car crash victim "had a common law privacy interest, subject to certain limits, in images of her mutilated corpse."

High School Students Study Appeals

The 2nd DCA will host an “Appellate Court Experience” (ACE) educational outreach program for El Camino High School students on Wed., April 19, at 9:30 am. 

"The ACE program includes a classroom curriculum administered by appellate attorneys, followed by a visit to the Court of Appeal to observe oral arguments in a case previously studied in the classroom. After oral argument, the students are introduced to the appellate court process first-hand with an opportunity to interact with the justices and the attorneys," according to the AOC press release.

The event is cosponsored by the Constitution Rights Foundation, the Los Angeles County Bar Association’s Appellate Courts Committee, and the California Academy of Appellate Lawyers.

Appellate Gig

So there's a Craigslist want ad for an appellate lawyer. 

The employer? 

California Supreme Court Justice Joyce Kennard. 

Here's the scoop from the Recorder:

"Kennard is seeking applicants, whom she said by phone must be 'nice' and work 'diplomatically' with others. 

"Kennard’s known as a loveable, but exacting, boss, and her ad makes clear that applicants must be tough-skinned. 'The attorney must be able to work independently,' ads in the Recorder and on Craigslist state, 'while also welcoming extensive revision and editing by Justice Kennard, as well as criticism of the work product by other attorneys on her staff and by other justices and their staffs.'

"Responses must be in by May 15. And the winner could have a job for life."

(h/t Ben Shatz)

2nd DCA e-Filing

The Judicial Council’s Rules and Projects Committee has reviewed the proposed Appellate E-filing Pilot Program Rules for the Second Appellate District and recommended that the Judicial Council adopt the rules, effective July 1, 2010.

The Judicial Council’s Executive and Planning Committee will review the proposal on Monday, April 5, for the purpose of determining its readiness and placement on the agenda for the council’s business meeting on April 23.

(h/t Ben Shatz)

Interview Tips, Courtesy of Justice Breyer

So maybe you're considering calling the White House and letting it be known you'd like to be considered for that job opening they have, but you're a little concerned about the extensive interviewing process.

Don't fear.  To handle your Senate confirmation hearing, just "listen to senators' questions and try to not to get clever with [your] answers."

So says someone who has already landed that gig.

(h/t How Appealing)

New US Supreme Court Candidates

Government sources tell CNN.com that the White House has added several people to its short list of potential Supreme Court nominees:

 

9th Circuit Judge Sidney Thomas

Harvard Law School Dean Martha Minow

Harvard Law School professor and Congressional Oversight Panel chair  Elizabeth Warren

Justice Steven's Retirement Letter

Courtesy of Above the Law:

And to think some writers dislike one-sentence paragraphs!

New CJP Member

The governor appointed former State Bar president and Fresno criminal defense lawyer Anthony Capozzi to the Commission on Judicial Performance.  The MetNews has more on the story.

It's Official

Justice John Paul Stevens announced he will retire this summer.

Who Appellate Lawyers Would Appoint

Law360.com asked prominent appellate lawyers who they would nominate to the U.S. Supreme Court when Justice John Paul Stevens announced his retirement.  (h/t How Appealing)

Several California appellate lawyers were among the respondents.

Horvitz and Levy lawyers Peder Batalden, Jeremy Rosen, Felix Shafir, and John Querio would nominate 9th Circuit Judges Margaret McKeown (left), Susan Graber, or Barry Silverman.  These “easily” confirmable “centrists” are bright, young, and “possess[] a rich background of diverse and interesting experiences.”

Kevin Fong of Pillbury would appoint Justice Carlos Moreno (right), “who would bring to the Court a unique perspective as a state supreme court justice,” including “different insights on many issues, including issues of criminal law and land use issues, for example.”

Lee Marshall of Bryan Cave suggests 7th Circuit Judge Diane Wood (below), who is “smart,” “writes well,” and “has a great demeanor on the bench and a reputation as a consensus builder.”

Kurt Melchior of Nossaman would “go outside the list of appellate judges for the nomination,” as “there have always been people from other parts of the profession on the SupremeSupreme Court, and the court has been the better for this broadening of experience.” He would consider Kathleen Sullivan or Senator Sheldon Whitehouse of Rhode Island (below), “who has prosecutorial experience in addition to a good college and law school education.”

Kelly Woodruff of Farella Braun & Martel also would nominate Kathleen Sullivan (below) due to her “impeccable credentials, litigation and academic expertise in constitutional law, and a proven track record of leadership and consensus building.”

Lunch with the 4/3

We are expecting a good turnout from the 4/3 at today's "2009:  Year in Review" presentation and OCBA Appellate Law Section meeting. 

We hope to see you at McCormick's in Santa Ana at noon.

OCBA Appellate Law Meeting

Tomorrow my colleague Matt Ross, a 4/3 senior attorney working in the chambers of Justice Richard Fybel, will speak to the OCBA Appellate Law Section to present "2009: The Year in Review."  He will analyze the 4/3's published opinions in civil cases from last year. 

Matt's updates are always informative and entertaining.  All lawyers are invited, including non-section members.  We offer a fine lunch at McCormick's in Santa Ana and Appellate Specialization CLE credit.  Details are available here.

Update on Liu Nomination

The Wall Street Journal is covering the latest developments in the confirmation of Goodwin Liu for the 9th Circuit. 

Republican senators are criticizing the supplemental release of some speeches and writings as "'incompetence'" or a "'knowing[] attempt[] to hide his most controversial work.'"

Democratic senators are pointing out that judicial nominees -- including CJ John Roberts -- routinely supplement their nominations with additional material.  (h/t How Appealing.)

"Amici Flood" at California Supreme Court

To follow up on M.C. Sungaila's article on amicus briefs, here is an article from the Recorder on the flood of amicus briefs being filed in the County of Santa Clara case, in which the California Supreme Court will decide whether governmental entities may retain contingency fee counsel if a government lawyer retains supervisory control.  (h/t How Appealing.)

Welcome New Appellate Lawyers

Appellate firm Horvitz & Levy added two new associates, according to LA Legal Pad. 

Andrea A. Ambrose is a USC law grad who clerked for 9th Circuit Judge Alarcon and worked at Latham. She externed for Justice Ashmann-Gerst of 2/2.

Jason J. Jarvis is a Pepperdine law grad who clerked for 6th Circuit Judge Batchelder and worked at national law firms.

Welcome California Supreme Court

Today and tomorrow, the California Supreme Court will hear oral argument in Los Angeles. 

They'll take the bench in the Supreme Court Courtroom, Ronald Reagan State Office Building, North Tower, 300 South Spring Street, Los Angeles.  To view case summaries for the matters on calendar, click here.

Welcome Justice Grimes

Yesterday, the Commission on Judicial Appointments unanimously confirmed the appointment of Judge Elizabeth Grimes to the 2/8.  Welcome, Justice Grimes!

Future of Justice Stevens

Justice Stevens contemplates retirement here, in the New York Times.

Senator Arlen Specter urges him to wait until 2011 as noted here, in USA Today

NLJ: Carter Phillips Interview

Along with its Appellate Hot List, the NLJ posted a video of an interview with Carter Phillips about Sidley Austin's appellate practice.

NLJ's Appellate Hot List

The National Law Journal announced its Appellate Hot List for 2010, recognizing firms that, in its estimation, "earned at least one significant appellate win since January 2009 and that could boast an impressive track record overall."

The NLJ chose the following 20 firms "from scores of nominees," though it regretted "that space didn't always allow us to recognize all the firms that contributed to the outcomes."

- Akin Gump Strauss Hauer & Feld

- Arnold & Porter
- Gibson, Dunn & Crutcher
- Fulbright & Jaworski
- Hogan & Hartson
- Jenner & Block
- Jones Day
- Latham & Watkins
- Mayer Brown
- McDermott Will & Emery
- Morgan, Lewis & Bockius
- O'Melveny & Myers
- Quinn Emmanuel Urquhart & Sullivan
- Sidley Austin
- Skadden, Arps, Slate, Meagher & Flom
- Weil, Gotshal & Manges
- Williams & Connolly
- Wilmer Cutler Pickering Hale and Dorr
- Winston & Strawn
- Yetter, Warden & Coleman

"A Friend Indeed"

Horvitz & Levy partner M.C. Sungaila has written an insightful article analyzing the increasing “prevalence and influence of amicus briefs.”

Her research shows amicus briefs, “once rare,” recently have been filed in 92% of civil cases at the US Supreme Court and 60% of civil cases at the California Supreme Court. The average number of amicus briefs per civil case ranges from approximately 10 at the US Supreme Court to 4 at the California Supreme Court.

Amicus briefs “‘increase[] the likelihood of a grant of certiorari . . . and influences litigant success on the merits.’”  The courts’ opinions regularly refer to issues raised in amicus briefs.  In many cases, the opinions mention amicus briefs by name.

Not all amicus briefs are created equal. To find out who are the most influential amici and how their briefs can be the most persuasive, read M.C.’s engaging and effective article.

Oral Argument Tip

Don't forget to eat breakfast that morning.

Or you may find yourself addressing the court from the floor, on your back, after you faint from hypoglycemia.

It happens.

If it happens to you, we can only hope you'll have the fortitude to "go down arguing," so to speak, as Duke law student Stephen Rawson did before the Fourth Circuit. 

Answering the court while fainting?  Impressive.

But it's more impressive to stay on your feet.
(h/t Legal Writing Profs Blog)

Court Rules and the Sausage Factory

Ever look at court rules and wonder how THAT got in there?  The answer is usually, "by committee." 

Using advanced economic analysis, Professor Paul J. Stancil questions the committe-approach to federal court rule-making in the Virgina Law Review.  (h/t Concurring Opinions)

9th Circuit Judge Takes Senior Status

Ninth Circuit Judge Andrew J. Kleinfeld will take senior status as of June 12, 2010.

Among his many accomplishments, Judge Kleinfeld authored the 9th Circuit opinion in Morse v. Frederick.  The US Supreme Court later reversed in a controversial decision. 

If the name doesn't ring a bell, maybe this photo will help:

Justice Breyer on Foreign Law

You can download a webcast of Justice Steven Breyer's address to the Johns Hopkins' School of Advanced International Studies, "The Court and Foreign Law."

Addition to Cal.4th

You'll find something new in the upcoming volumes of the Official California Reports, i.e., Cal.4th. 

Decisions from the Commission on Judicial Performance will be included in supplements to the reporters, announced the California Supreme Court.

Justice O'Connor at Pomona College

Retired US Supreme Court Justice Sandra Day O'Connor spoke at Pomona College this week. 

"She said judges and courts should be protected from political influence and special-interest campaign contributions in judicial elections so they can be neutral and fair. She said schools need to step up efforts to educate children in the working of courts and government affairs," according to Southern California Public Radio.

Is-Ought

It's one thing to have a right.  It's another thing to exercise it. 

So even if a law professor claims you have the right to impugn judicial integrity in court proceedings -- as Professor Margaret Tarkington (right) does in the Boston College Law Review -- you should consider whether doing so is likely to advance your client's objectives.  Questioning a trial judge's integrity is unlikely to persuade an appellate court.

"Is" does not imply "ought."

4/3 Affirms Haidl conviction

The opinion affirming the conviction of Greg Haidl and his codefendants is available for download here. 

The case is attracting media attention from CBS2 News,  OC Register, LA Legal Pad, Daily Pilot, San Francisco Chronicle, and elsewhere.  (Photo: OC Register)