Friendly Help for Friends of the Court

M.C. Sungaila also has a terrific article in today's DJ, "Effective Advocacy Through Amicus Briefs."  Her advice includes:

• "Distinguish between amicus support at the review and merits stages"
• "Make sure your brief adds something to the case"
• "Consider whether the brief you propose fills one of three roles for amici"
• "Write well and succinctly"
• "Choose your amici (and amicus counsel) carefully"
• "Consider the impact of an unusual constellation of amici joining a brief"

Speaking of the Kagan Hearings . . .

Horvitz & Levy partner M.C. Sungaila will join law profs Adam Winkler (UCLA) and Robert Pushaw (Pepperdine) to discuss the hearings at an upcoming presentation, "The Next Justice? The Kagan Hearings and Where She Might Take the Court."

The event is Thursday, July 1, from 5 to 7pm at the Downtown LA office of Gibson Dunn, 333 S. Grand Ave., 53rd Floor.  It is sponsored by the American Constitution Society (LA Chapter), the Federal Society (LA Chapter), and the Women Lawyers Assoc. of Los Angeles.

Best of all?  The event is free!  Register here.

Meanwhile, in Washington D.C . . .

The US Supreme Court is: 

• saying goodbye to Justice Stevens, who takes the bench for the last time today;
• mourning the loss of Justice Ginsburg's husband, tax law expert Martin Ginsburg;
• keeping an eye on the start of the confirmation hearings for Elena Kagan (watch live here!); and
• issuing notable opinions on free speech, the Second Amendment, separation of powers, and patentability.

That last case gives me a great idea.  Too bad now I can't patent it . . .

File On!

While SCAN usually focuses on California state court appellate news, we thought you may be interested to know a local institution has filed a different kind of appeal.

Summer Reading?

I read a lot of book reviews.  It's faster than reading the books themselves, and almost as much fun.  It's like getting half the enjoyment in a tiny fraction of the time.  Time management is always smart.

Still, I don't often read a book review that makes me laugh out loud.

But I did this morning.  Pick up the DJ to read Ben Shatz's terrific review of . . . 175 Cal.App.4th.

This is one review that may be even BETTER than the book!

Join a Nationwide Appellate Bar

The only national appellate bench-bar organization in the country, the ABA's Council of Appellate Lawyers, invites you to join.

As CAL executive committee member and Horvitz & Levy partner Brad Pauley explains:

"CAL offers a unique opportunity to meet and learn from federal and state appellate judges and practitioners. In partnership with the AJC and the Appellate Judges Education Institute, CAL presents an annual four-day educational summit focused exclusively on appellate practice and substantive issues of interest to appellate practitioners. Through its educational sessions and multiple social events, the annual summit allows for a direct exchange of ideas and information between the appellate bench and bar. Past speakers at CAL’s summits have included retired Supreme Court Justice Sandra Day O’Connor, U.S. Circuit Judge Diane Wood, former Solicitor General Ken Starr and Dean Erwin Chemerinsky, as well as numerous other appellate judges and notable appellate practitioners. CAL also presents programs at the ABA’s mid-year and annual meetings.

"CAL members enjoy a subscription to The Journal of Appellate Practice and Process, the chance to join podcasts and webinars for CLE credit at reduced rates for members, and subscriptions to several ABA publications, including The Judges Journal, a quarterly publication containing articles on issues affecting the judiciary."

Venti-Sizing Your Practice

Here's something that will interest many lawyers I know:

Four cups of coffee a day might be good for you.

Enjoy!

Judge Stories

Professor Chad Oldfather, who studies the judiciary for a living, reviews William Domnarski’s "Federal Judges Revealed" here in the George Washington Law Review. 

He explores Domnarski’s claim that only oral histories can tell us "'who the judges are and what they do.'"

If nothing else, the stories told by federal circuit and district court judges are likely to make for interesting reading.

Judicial Ideology

Laypeople, and even many lawyers, may think ideology plays a large role in judicial decisionmaking, especially at the appellate level.

If that's true -- to be sure, it's far from clear -- can we measure judicial ideology in any meaningful way?

Professor Corey Yung thinks he can.

(h/t Concurring Opinions)

Another Appellate Appendix-ectomy

Last month, we pointed out an opinion that severely criticized the "wretched excess" of the appendix submitted on appeal.

Here's another reminder to consider whether you can cut down on the appendix without jeopardizing your appeal.  (And, with it, a request to use the 4/3's voluntary e-briefing program)

See footnote 4 of Thrifty Payless Inc. v. Mariners Mile Gateway LLC:

"The cross-complaint serves as a relevant point for us to raise the issue of the 'wretched excess' that is the appellant's appendix in this case.  (Silvaco Data Systems v. Intel Corp. (2010) 184 Cal.App.4th 210, 217, fn. 2.)  It runs 20 volumes and 5,229 pages, along with an 18-volume reporter's transcript of 3,323 pages. We remind all litigants of rule 8.124(b)(3)(A) of the Rules of Court, which states that an appendix must not '[c]ontain documents or portions of documents filed in superior court that are unnecessary for proper consideration of the issues.

"Documents relating to the cross-complaint serve as a good example of the failure to comply with this rule. Although it was later dismissed and has no relevance to the issues on appeal, the appendix includes not only the initial cross-complaint, but the first amended cross-complaint,the answer thereto, and an amended answer. The preliminary injunction, also not a subject of this appeal, amounts to some 700 unnecessary pages in the appendix which contains all of the law and motion documents, including evidence, evidentiary objections, and proofs of service.

"We could easily provide several more examples of unnecessary documents not required by rule 8.124(b)(1)(A) in the appendix, but we trust that we have made our point:  appendices must comply with rule 8.124(b)(3)(A), and the failure to do so subjects the violating party to potential sanctions (rule 8.124(g).) (Further, we note that utilizing this court's voluntary e-briefing program, while not required, would be of particular utility in cases involving voluminous records.)"

Judge Tucker Confirmed

Congrats to Orange County Superior Judge Josephine Tucker.  The Senate has confirmed her nomination to the U.S. District Court for the Central District of California.  Judge Tucker will serve in Santa Ana.

Appellate Rising Stars

Congrats to the 2010 Southern California Rising Stars in Appellate Law, selected by Super Lawyers.com:

• James Azadian, Enterprise Counsel Group
• Peder Batalden, Horvitz & Levy
• Holly Boyer, Esner & Chang
• Wendy McGuire Coats, McGuire Coats
• Amy Cooper, Beach Whitman
• Robert Cooper, Wilson Elser
• Curt Cutting, Horvitz & Levy
• Blaine Evanson, Gibson Dunn
• Katherine Galston, Akin Gump
• Theane Evangelis Kapur, Gibson Dunn
• Kira Klatchko, Best Best
• Kenneth Pedroza, Cole Pedroza
• John Querio, Horvitz & Levy
• Jeremy Rosen, Horvitz & Levy
• Fred Rowley, Munger Tolles
• Kahn Scolnick, Gibson Dunn
• Felix Shafer, Horvitz & Levy
• Margaret Thomas, Horvitz & Levy
• Cynthia Tobisman, Greines Martin

Some photos:

James Azadian

Curt Cutting

Katherine Galston

Kira Klatchko

John Querio

Margaret Thomas

Cynthia Tobisman

Published Upbraiding of Appellate Lawyer

Want to avoid public criticism from an appellate court?  Start by following the appellate procedural rules. 
Here is a case excoriating counsel for several rule violations.  (hat tip:  Legal Writing Prof Blog.)  It's a valuable cautionary tale from the Wisconsin courts.  It notes the lawyer in question, Estes,

"violated the rules of appellate procedure by failing to provide proper citation to the appellate record or to the relevant case law.  While not bothering to properly cite within it, Estes also submitted an excessively long,230-page appendix.  Including nearly the entire record in the appendix defeats the very purpose of an appendix.  Further, her brief’s table of authorities fails to comply with WIS. STAT. RULE 809.19(1)(a), which requires 'reference to the pages of the brief on which [the authorities] are cited.'  It is unacceptable to merely indicate 'passim,' without indicating even the first page at which an authority appears in the brief.  Nor is it acceptable to list in the table nine chapters of the Wisconsin statutes as a single authority, or, for that matter, a single chapter, or an entire code, or multiple sections of a federal act—all of which Estes did here, and all of which direct us only to 'passim.'"

California, too, requires proper citations, appendices, and tables of authorities.

Watching the 9th Circuit En Bancs

Federal appellate practitioners, take note:  The Ninth Circuit will host remote viewing of its June 22-23 en banc hearings at the Chambers Courthouse in Pasadena.

(h/t Ben Shatz)

How Justices Read Statutes

A review of Frank Cross's "The Theory and Practice of Statutory Interpretation" is available at Concurring Opinions.

According to the review, Cross analyzes "four competing theories of statutory interpretation—textualism, legislative intent, interpretive canons, and pragmatism."  He "provide[s] a virtual primer on the most prominent works in the field of statutory interpretation . . . infused with Cross’s own incisive take on the standard debates."

Cross also conducts an emiracle study of statutory interpretation at the US Supreme Court.  He concludes "the use of textualist interpretive tools does not seem to have any constraining effect on ideological judging. In fact . . . the plain meaning standard seemed to be ideologically manipulable — in that the probability of a Justice reaching a liberal or conservative outcome using the plain meaning standard corresponded rather closely to the Justice’s overall ideological preferences."

So Cross apparently claims liberal justices can read the plain language of a statute as supporting a liberal construction, and conservative justices can read its plain language as supporting a conservative construction.

The reviewer calls this "counter-intuitive" and "a little mind boggling."

Do you think so?

Justice Thomas in 2012?

Should Justice Clarence Thomas leave the court -- about which he concedes, "'I wouldn't say I like it'" -- and contemplate taking another Washington job?

Above the Law editors Daivd Lat and Kashmir Hill explore the possibilities here.

(h/t How Appealing)

Last Court Closure?

The Judicial Council is hoping today will be the last furlough day, and that the 2010-2011 budget will allow courts to remain open, serving the public.

John Wooden, 1910-2010

"Make each day your masterpiece."
-- Coach

Have Riverside Cases? Don't Miss Today's 4/2 Presentation!

At today's OCBA Appellate Law Section meeting, you can learn how to best prepare your 4/2 appeals. 

Our standout speakers are 4/2 Presiding Justice Manuel A. Ramirez (right) and 4/2 managing attorney Donald A. Davio, Jr.  We're thrilled to have them.

We'll see you at McCormick & Schmick's on Main St. in Santa Ana, today at noon.

Judicial Council Welcomes 4/2 Justice Miller

4/2 Justice Douglas P. Miller has been appointed to the Judicial Council of California. 

Also, Orange County Superior Court Judge Robert J. Moss and Orange County Superior Court Chief Executive Officer Alan Carlson have been named advisory members of the council.

Presiding Justice Ardaiz to Retire

5th DCA Presiding Justice James A. Ardaiz will retire this year, at the end of his term, reports the Met News.

Cheryl Miller at the Recorder notes PJ Ardaiz is credited with "eliminating the appellate court's backlog in the mid-1990s and spearheading the construction of the court's new home in 2007." 

PJ Ardaiz is also well-known, Miller reports, for his "numerous articles supporting the death penalty and the state's Three Strikes law, which he helped write. In 1994, when he stepped forward to acknowledge he was one of three judges who helped shape the law, Ardaiz told the Los Angeles Times that his motivation was "'very simple: I want to see [California] be a better place to live. I want it to be a safer place to live.'"

(h/t Ben Shatz)