Tuesday, February 10, 2015

Trio of appellate articles in today's DJ

(1) Legal System Without Appeals Should Raise Eyebrows, by Thomas Coleman, director of the Disability and Abuse Project of Spectrum Institute, asserts that there is "a category of cases that has almost no contested hearings and virtually no appeals - limited conservatorship proceedings for adults with intellectual and developmental disabilities. Some 5,000 of these cases are processed in California each year, with 1,200 of them in Los Angeles County alone."
Show me a legal system that has no appeals and I will show you a rigged system. Consider me a whistleblower if you wish, but this cannot continue. Something must be done.
One solution would be to pass a bill clarifying that a "next friend" can file an appeal for someone who lacks competency to do it for himself or herself. Such a proposal, known as Gregory's Law, is being circulated now.
Gregory's Law would allow a relative or friend to file a "next friend" appeal to challenge the orders of judges or the conduct of appointed attorneys that infringe the rights of limited conservatees. Clarification is needed because a published opinion (Conservatorship of Gregory D., 214 Cal.App.4th 62 (2013)) declared that only the limited conservatee may appeal to complain about these issues.
That creates a Catch-22 for limited conservatees. Because of the nature of their disabilities, they lack the understanding of how to appeal. Their appointed attorneys won't appeal because it is they who surrendered the rights of their clients. So ongoing violations of the rights of people with disabilities are never reviewed on appeal.
The best solution would be for attorneys to serve their primary duty, defending the rights of their clients. This should be their only focus. The court rule giving them a secondary duty to help settle cases should be eliminated.
(2) Closing the Appellate Justice Gap, by Kevin Greene, discusses the 2d District's and 4/1's appellate self-help programs.
The concept that began in Los Angeles with its appellate clinic is catching on elsewhere. Although the justice gap is vast, practitioners can help close it by collaborating locally in this time of great need. Due to severe budget cuts, the courts are hurting and, as a result, so are the litigants the judicial branch exists to serve.
Lawyers must step up to ensure access to justice. In doing so, we counter the growing perception that the judicial system is only for those who have the money to pry open the courthouse doors. Self-help programs, as far as they can, provide meaningful assistance in an imperfect world.
The bar has faced tough times since the Great Recession, especially new lawyers carrying mountainous student loan debt. But if not the bar, who will take the lead in closing the justice gap? More than anyone, this is on us.
At the appellate level, the 2nd District was the first to act and inspired the San Diego appellate bar to establish an analogous program. Who will be next? 

(3) H&L's Lisa Perrochet offers Briefs Are All About the Words, Not Pages, discussing the pending proposal to drop the cap on federal appellate briefs from 14K words to 12,500.
Lisa's all about the words, 'bout the words, not pages.

And in the "Once and Future Justice" genre, the MetNews reports that retired Justice Elwood Lui would like to return to the Court of Appeal:
Lui Seeks Return to Court of Appeal Post
Now 74, He Seeks Appointment From Governor Who Previously Appointed Him

"Currently, eight of the 13 federal circuits (3rd, 5th, 6th, 7th, 8th, 9th, D.C. and Federal) post argument audio online the day of a hearing. Of the remaining five, two (1st and 4th) try to upload an audio file within 24 hours of oral argument. Meanwhile the 2nd and 11th Circuits require that interested parties purchase the audio, and the 10th Circuit requires a motion be filed to acquire a recording."