"You Look Like a Monkey, and You Smell Like One Too."

I know full well my boys will sing this to me tonight.  Truth be told, I can't wait. 

Wikipedia's list of famous people born today includes an American legend (Teddy Roosevelt), a preeminent lawyer-statesman (Warren Christopher), writers of the first magnitude (Erasmus, Dylan Thomas) . . . and Ivan Reitman, whose contributions -- Animal House, Stripes, Ghostbusters -- are unparalleled in the annals of human achievement.

Newman's Lessons for Legal Writers

Ben Shatz -- LACBA Appellate Court Committee chair, incoming State Bar Committee on Appellate Court chair, and all-around appellate guru -- has written another engaging DJ article.

This one is a paean to legendary reporter Edwin Newman, whose "lessons on using language with exactness and grace should have particular resonance with lawyers, who, after all, must strive to speak and write clearly, concisely, and correctly. Put differently, lawyers - who make their living through arranging words - are particularly susceptible to the misuses Newman worked so hard to expose and eradicate."

Pick up the Oct. 21 edition for the full version.  Here's a sample to encourage you:

"Words frequently misused by lawyers and the public in general are legion. Newman vigorously joined the raging grammar wars in battles against the incorrect use of "me," "hopefully" and "parameter" - the latter of which remains a favorite with the practicing bar. There is also the alarm about the improper shunning of the word "me" - which commonly and distressingly is being replaced by either "I" or the reflexive "myself." Similarly, in an attempt at hyper-correction, many educated people who should know better have taken to saying "I feel badly," when they mean to say "I feel bad." (Feeling badly is a neurological disorder; feeling bad is a sorrowful emotional state.) All those law students and lawyers who have uncracked copies of "Black's Law Dictionary" on their shelves should consider trading them in for another Bryan Garner opus, his "Garner's Modern American.

"But back to Newman. Here is a prime example of Newman's sarcasm, with a lesson for lawyers: "AP story from October 5, 1973: 'Buenos Aires, Argentina - A high-ranking police officer was shot to death in front of his home Thursday night in the fourth political murder since Juan D. Peron was elected President less than two weeks ago.' Juan D. Peron. The D. is there is keep you from confusing Juan D. Peron with the Juan Q. Peron also elected president of Argentina two weeks earlier." Newman's point is that although middle initials are thought to add authenticity and the ring of history, they most often are painfully unnecessary. Lawyers are guilty of this too, typically using middle initials (and other superfluous detail) to lend an air of exactness, when in nearly all cases such extra information is entirely useless. Unless you happen to be litigating the case of John A. Smith versus John B. Smith, there is little need to belabor the parties' middle initials."

Ben concludes, "Those who share his vision should continue to oppose verbiage and strive for direct, specific, concrete, colorful, subtle, imaginative writing. Newman's lessons live on; his advice remains sound. Although several of his linguistic causes have been lost, hopefully he can forgive us."

Appellate CLE program

OC appellate specialist Jim Mahacek has alerted his "Secret Society" of appellate lawyers -- we know who we are -- to "The Appellate Process," an upcoming CLE program featuring a who's who of the SoCal appellate scene:

• 2DCA APJ Roger Boren
• 2/8 Justice Elizabeth Grimes (right)
• 2DCA Chief Deputy Clerk Dan Potter
• 2DCA Clerk Assistant Diana Torti
• David M. Axelrad and Lisa Perrochet of Horvitz & Levy
• Robin Meadow of Greines, Martin, Stein & Richland

The program is Nov. 17, 9 to 4:30, at the Millenium Biltmore Hotel in LA.  Register here.

Horvitz Happenings

Horvitz & Levy partner John Taylor (left) has been reappointed to a second term on the Judicial Council's Appellate Advisory Committee. 

Also at H&L, Peder Batalden and Dean Bochner have been elevated to partner.  Congrats!

According to the firm website: 

"Mr. Batalden handles appeals and writs spanning a wide range of subjects, with particular expertise in federal appeals. He has briefed and argued numerous matters before the United States Courts of Appeals for the Ninth and Tenth Circuits in actions arising throughout the western United States. In 2009, Mr. Batalden was appointed by the State Bar of California to its Standing Committee on the Federal Courts. The Committee studies and reports on proposed changes to federal procedures and practices, works to enhance relations between the Bar and the federal courts, and meets with federal judges and other representatives to understand issues of importance to the federal judiciary. Prior to joining Horvitz & Levy LLP, Mr. Batalden was an associate at Skadden, Arps, Slate, Meagher & Flom.

"Mr. Bochner’s trial and appellate experience covers a wide range of practice areas, including trademark, entertainment, products liability, medical malpractice, public entity liability, and malicious prosecution. He has handled appeals in the California Court of Appeal, the Supreme Court of Nevada, and the United States Court of Appeals for the Ninth Circuit. Before joining Horvitz & Levy LLP, Mr. Bochner was executive vice president of a financial services company that purchases assignments of civil judgments pending on appeal. In that capacity, he evaluated hundreds of civil appeals in state and federal courts throughout the country. Mr. Bochner also was a litigation associate at Tuttle & Taylor, where he handled a variety of civil litigation matters in the trial and appellate courts."

Congrats to Justice Moore!

4/3 Justice Eileen Moore received the "Outstanding Contributions to Education" award from the Orange County Board of Education yesterday.

The Board recognized Justice Moore's groundbreaking courthouse art project ("Art Reception"), in which middle and high school students, some in juvenile hall, portrayed noteworthy 4/3 cases in paintings that now grace the 4/3's public lobby.

We're all very proud of Justice Moore and her outreach to local students.

(Justice Moore receiving award from OCBE member Long Pham, Ph.D.)

Empirical (?) Judicial Studies

Just because you can attach a number to something doesn't mean it's quantifiable.  Or, maybe more accurately, just because something is quantifiable doesn't mean it's objective.  Or meaningful.

But that doesn't stop people from trying.

Empirical judicial studies is a hot topic.  Apparently, you can tell a lot about the judicial system by labeling judges liberal or conservative (usually based on the party affiliation of whomever appointed them), labeling their opinions liberal or conservative (usually based on which party prevailed), and making some kind of statistical association.

Sound like voodoo?  Sound like circular reasoning?  "Let's assume judges are beholden to the appointing executive's party and results-oriented, and use 'science' to show they are ideologically driven."  I'm not sure this is a useful venture.

But again, that doesn't stop people from trying.  Here's a California Law Review article -- "How Not to Lie with Judicial Votes" -- that tries to justify the empiricalistic endeavor.

A preview (footnotes omitted):

"[T]his Article synthesizes and unifies the understanding of statistical measures of judicial voting.  It provides a guide for how to interpret such measures, clarifies misconceptions, and argues that the extant scores are merely a special case of a general approach to studying judicial behavior with (model-based) measurement.

“[W]e demonstrate how modern measurement methods are useful precisely because they empower meaningful examination, data collection, and incorporation of doctrine and jurisprudence.  We argue that existing uses are simply a special case of a much more general measurement approach that works synergistically with the qualitative study of case law.  We demonstrate in Part V how such measurement approaches—when augmented with jurisprudentially meaningful data—can advance our understanding of courts . . . ."

Farewell to Old Records

No, not vinyl records.  Those have been making a comeback of sorts. 

But try telling someone under 20 they "sound like a broken record."  They'll have no idea what you mean.  Then tell them about pay phones and watch their confused looks.  In fact, a recent poll of incoming college freshman revealed that they have never twisted (or untangled) a telephone cord.  And most of them do not understand why someone would tap your wrist to ask for the time.  Why would they?  They carry cell phones.

Anyway . . . The 2nd DCA is destroying appellate records in criminal cases numbered B035000 to B044999 with final dispositions before January 1991.

Electronic Briefs in LA

The 2nd DCA has "announced that a web portal for electronic submission of briefs is now ready for use on the court’s web page on the California Courts website: http://www.courtinfo.ca.gov/courts/courtsofappeal/2ndDistrict/docsub/." 

In the press release, the court notes a main attraction of filing an e-brief:  less paper for you to file.  If you file an e-brief, you can submit three paper copies instead of the four currently required.  And in civil cases, the e-brief will be filed simultaneously with the California Supreme Court, as required by CRC 8.212(c)(2)(A).

But here's another advantage, from the research attorney perspective.  Search features will allow us to faster find arguments and citations in your brief.  We'll be able to confirm in seconds that you've raised or responded to a critical issue, or presented an important fact.  We can also survive TOA typos and "passim" cites -- why would you do that? -- to find each time you discuss a persuasive case or statute.

Common sense suggests that a reader would prefer working with an easily searched document . . . .

SoCal Appellate Events: Part II

The San Diego County Bar Association's Appellate Courts Committee, the Federal Bar Association, and Appellate Defenders, Inc. are presenting "How to Settle Your Case on Appeal in State or Federal Court."

4/1 Justice James McIntyre (left) and 9th Circuit Judge M. Margaret McKeown will discuss their courts' settlement procedures:  the 4/1's Voluntary Settlement Program and the Ninth Circuit Mediation Program.  A Q&A session will be moderated by certified appellate specialist Ed Silverman.

The event will take place Oct. 26 from 12 to 1:15 at the Bar Center, 1333 Seventh Ave., in San Diego.  It is BYO lunch:  $15 for SDCBA/ACC members, $20 for SDCBA/non-ACC members, and $45 for non-SDCBA members.  You can register at the SDCBA website.

Questions?  The SDCBA Appellate Courts Committee program chair is appellate lawyer (and former 4/1 research attorney!) Jennifer Hegemier.

SoCal Appellate Events: Part I

The Riverside County Bar Association's Appellate Law Section is presenting "Welcome to the 4/2."  Justices from the 4/2 will discuss court procedure and give local practice advice over lunch at the 4/2 courthouse in downtown Riverside.

The event is Monday, Nov. 1, from 12 to 1:30.  It is FREE for RCBA members, $25 for non-RCBA members.  Lunch will be provided courtesy of Best, Best & Krieger.  You may RSVP by Oct. 25 to BB&K appellate group vice-chair and certified appellate specialist Kira Klatchko (right).

If You Worked for the State of California, You'd Be Home Now

Happy Columbus Day . . . or Indigenous People's Day . . . or what-have-you. 

Me?  I'm going to spend mine scrutinizing the new California budget.  Wonder if we'll get Columbus Day next year, too. . . .

4/3 Justices Congratulate Justice Ikola

4/3 Justices Kathleen O'Leary, Eileen Moore, Richard Fybel, and 4/3 managing attorney Nancy Kendrick joined a standing-room only crowd at the Center Club last Thursday as Justice Ikola received the Judge of the Year award from the Constitutional Rights Foundation-OC. 

Justice Ikola dedicated his award to all the other volunteers who support the CRF-OC mock trial program -- the teachers and attorney coaches, the judges, and the attorney scorekeepers.  He said the greatest reward is watching the students develop and flourish.  He singled out one former CRF-OC mock trialer who graduated from Yale Law School, and another who was giving this year's commencement address at UCLA.

"Celebrating Appellate Excellence" Photos

Guests enjoying dinner, the tribute to Presiding Justice Sills, and the U.S. Supreme Court update:

Presiding Justice Sills and Administrative Presiding Justice Judith McConnell:

Judge Guilford welcomes Presiding Justice Sills as Steve Kelly looks on:

Justice Rylaarsdam and his wife, Jan:

Justice Ikola:

4/3 administrator Kevin Stinson and supervising clerk Kathy Rossi:

4/3 research attorneys Kathy Nock, Bill Ball, Richard Helms, and Janice Patronite; appellate lawyer Merritt McKeon:

4/3 research attorney Josie Chow, Jan Rylaarsdam, Kathy Nock, and Bill Ball:

An Elegant Evening Celebrating Appellate Excellence

Nearly 120 appellate justices, appellate court representatives, trial court judges, and prominent lawyers filled the Pacific Club’s main dining room last night as the OCBA Appellate Law Section presented the first David G. Sills Award for Appellate Excellence to its namesake, 4/3 Presiding Justice Sills.

The 4/3 turned out in full force.  Justices Rylaarsdam, Bedsworth, Moore, Fybel, and Ikola attended the event (the other justices being out of the state or out of the country), as did managing attorney Nancy Kendrick, several staff members and a dozen research attorneys.

Fourth District Administrative Presiding Justice Judith McConnell (right)came up from San Diego to honor Justice Sills, as did Fourth District Clerk/Administrator Steve Kelly and 4/1 managing attorney Kim Stewart.

The Orange County Superior Court’s contingent included Presiding Judge Kim Dunning, Judge Gail Andler, and Judge Geoffrey Glass, among others.

OCBA Appellate Law Section Chair Ed Siebel welcomed the crowd and turned things over to emcee Bill Kopeny, who kept us laughing with his wit and self-deprecating humor, and also kept the event running smoothly.

U.S. District Judge Andy Guilford spoke of Justice Sills’ first visit to Orange County, as a Boy Scout attending the National Jamboree that would lend its name to the major thoroughfare in the town, Irvine, for which Sills would later serve as mayor.  State Bar Executive Director Joe Dunn praised Justice Sills as a true hero.  Justice William Rylaarsdam noted he and Justice Sills were appointed to the bench on the same day, and that the years spent working alongside Justice Sills were the happiest of his legal career.

Justice Rylaarsdam (left) then presented Justice Sills with the award that will bear his name.  Justice Rylaarsdam also gave him a memento from the California Judges Association to celebrate his 25 years on the bench.

Justice Sills thanked the Appellate Section and the guests for the award.  But he gave all the credit to his court family:  the research attorneys (including his lead attorney, Jeff Calkins, who kept working on cases while on vacation in Hawaii); the judicial assistants (including Rhonda Tharp, who reads his mind even before he knows what to think); the court clerks (who win kudos from attorneys across the state), and the CHP’s judicial protection service (who protect the court against ever-evolving threats).

Having celebrated appellate excellence in Orange County, we turned to celebrating appellate excellence on the other coast.  Dean Erwin Chemerinsky and Professor John Eastman took turns regaling the crowd with insightful analysis of the U.S. Supreme Court, including predictions on some of the challenging cases that it will hear this term.