Cal Supreme Court expands e-filing!

Effective May 1, 2018, the Supreme Court has revised its eFiling Rules expanding electronic filing into original proceedings in criminal and civil cases. New rules here.

Dial it back, counsel!

Here's an unpub from 4/3 today that has a few buried gems and lessons in civility:

Dial it back
to a more civilized time!

• "none of the briefs would win any awards. Among other things, plaintiffs’ briefs were overly complicated, repetitive, and too long, including numerous irrelevant facts. They often relied on hypertechnical arguments and sometimes cited cases that were inapplicable or inapposite."
• "Finally, we deplore the hostile tone of all of the briefs, especially plaintiffs’. This style of advocacy works against a party’s position, detracts from his or her arguments and claims, complicates our review, and needlessly drives up attorney fees and other litigation costs. It appears counsel have not heeded the trial court’s numerous suggestions to cooperate, act civilly, and put personal feelings aside. We make our own strong recommendation counsel dial back their emotions and act in a more professional manner."

Also from 4/3 today, this case justifies a shot of Dr. J!
And this allows a nice segue to what's gotta be the only card of a Supreme Court justice:

From the collection of appellate lawyer Erik Silber.

6th DCA Amended Local Rules

In case you missed it:
Effective April 16, 2018, the Court of Appeal, Sixth Appellate District amends
Local Rule 1regarding Mediation and
Local Rule 2regarding Electronic Filing

Rule 1(e)(1): "All parties in a civil appeal shall file a Mediation Statement Form within 15 days of the date the Clerk of this court sends notice that the court has received the notice of appeal. Each party shall also serve a copy of their completed Mediation Statement Form on all other parties."

Also of note, from the NYT today,  #GorsuchStyle Garners a Gusher of Groans. But Is His Writing Really That Bad?

And for today's installment of appellate sanctions, see this 4/3 decision here, which ends with sanctions against appellant of $5K for the respondent and $2500 for the Court of appeal, and which begins:

This is appellant[s] fourth trip to the Court of Appeal in the same case. It is at least one trip too many. All the issues raised in this appeal have been adversely decided as to [appellant] in at least one of two previous appeals. In deciding the last of these, we carefully explained why he could not repeatedly raise the same issues in serial appeals. This explanation fell on deaf ears.

Proposed FRAP changes

Bloomberg Law offers Proposed Amicus Brief Rule Change Has No Friends discussing nine proposed changes to FRAP presented to Congress on April 26 that "reflect the judiciary’s march into the electronic age. They will take effect Dec. 1 unless lawmakers change them." Proposed "Rules 28.1 and 31 allow 21 days instead of 14 days to file a reply brief." Other proposed rules address e-service, e-filing, class action practice, and amicus briefs:

Allowing courts to strike amicus briefs if they would result in a judge’s recusal appears to be the most controversial appellate item in the latest rule change proposal for federal courts.

Justice Ruvolo Joins JAMS

Today's DJ reports that retired Justice Ignazio Ruvolo has joined JAMS as a mediator, arbitrator and special master.

Ruvolo had a 24-year career on the bench, and he has presiding justice in the 1st District Court of Appeal, Division Four from 2006 until last year. He served previously as a justice in Division Two from 1996 to 2006. Earlier, he was a Contra Costa County Superior Court judge.

“I was in the public court system for just about a quarter century, and it was time for me to move on,” Ruvolo said. “I didn’t want to completely retire. I wanted a new adventure.”

Along these same lines, the DJ also reports that former 9th Circuit mediator Lisa Jaye is now at JAMS.

Private Atty General fees MCLE

Today's DJ has an article and MCLE test by Matthew Ross, Sr. Appellate Court Attorney at 4/3, about Private Attorney General Fees. "Readers will learn about the standards for recovery of fees, including the requirement of the existence of an important right, providing a substantial benefit, the necessity and financial burden of private enforcement, and the "catalyst" theory of recovery. Readers will also learn about the standards of appellate review governing private attorney general fees orders." The usual standard of review is for abuse of discretion, but de novo review is warranted "where the determination of whether the criteria for an award of attorney fees and costs in this context have been satisfied amounts to statutory construction and a question of law." (Connerly v. State Personnel Bd. (2006) 37 Cal.4th 1169.)
Also, "In reviewing the trial court's decision, [an appellate court] must pay 'particular attention to the trial court's stated reasons [and determine] whether it applied the proper standards of law in reaching its decision.' Families Unafraid to Uphold Rural El Dorado County v. Board of Supervisors, 79 Cal. App. 4th 505, 512 (2000)."  And "One appellate decision states that when Section 1021.5 attorney fees are awarded in the trial court following an appellate opinion, the award of fees is reviewed de novo. In that situation, "[a]n appellate court [is] in at least as good a position as the trial court to judge whether the legal right enforced through its own opinion is 'important' and 'protects the public interest' and whether the existence of that opinion confers a 'significant benefit on the general public or a large class of persons.'" Los Angeles Police Protective League v. City of Los Angeles, 188 Cal. App. 3d 1 (1986)."

2d DCA pro tem update

The following are currently sitting on assignment:

• Judge Laura A. Matz of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Two until June 30, 2018
• Judge Halim Dhanidina of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until May 31, 2018
• Judge Upinder S. Kalra of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until May 31, 2018
• Judge Dorothy C. Kim of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Five until June 30, 2018
• Judge Curtis A. Kin of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Five until May 31, 2018
• Judge Gail Ruderman Feuer of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until May 31, 2018
• Judge James Edward Rogan of the Orange County Superior Court, will be sitting Pro-Tem in Division Eight until June 30, 2018
• Judge Allan Goodman (Retired) of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Eight until May 31, 2018

It Seemed Like Such a Good Idea ...

Justice Beds' latest column in The Recorder is It Seemed Like Such a Good Idea ... In which our columnist ponders the sentiment conveyed by appellate lawyers who say "Your Honor, an argument could be made that . . ."

Whenever an attorney starts a sentence like that, I find myself wanting to interrupt and say, “By whom, counsel? Who could make this argument? Your barber? Your college roommate? Your cousin Vinny? Because it sounds like it’s not an argument you and your law firm want to put your reputation on the line for. It sounds like something you want to put in the mouth of some anonymous stranger.”

Along these same lines, see Oops! Kobach lawyer files document with all-caps notation 'Probably not worth arguing?'

Yesterday's DJ features 9th Circuit Judge Milan Smith in Early Threats to Federal Judicial Independence, a fascinating historical recounting.

Justice Moore's April 2018 Litigation Update (a publication of the California Lawyers Association Litigation Section) is available here.

JNE evaluating Justice Streeter...

The JNE Commission is evaluating 1/4's Justice Streeter for .... the open PJ spot in his Division! (What did you think it would be for? The open seat on the Supreme Court? That mystery won't be revealed until .... sometime ....)

And for those keeping score at home, there's an open PJ spot in 2/5 right now too.

PJ Bigelow to be honored as Distinguished Alumna

Pepperdine School of Law has announced its May 18, 2018 commencement speakers and awardees, which includes the following of appellate note:

Presiding Justice Tricia Bigelow (JD ’86), Second District Court of Appeal, Division Eight in Downtown Los Angeles, will be honored as the Distinguished Alumna. Justice Bigelow is a long-time member of our Board of Advisors, a preceptor, and frequent speaker and judge at Pepperdine events. In addition, she has traveled to Uganda with the Sudreau Global Justice Program. She was named Judge of the Year in 2014 by the California Courts’s Judicial Council.

2d DCA pro tem update

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

• Judge Laura A. Matz of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Two until April 30, 2018
• Judge Halim Dhanidina of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until May 31, 2018
• Judge Upinder S. Kalra of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until May 31, 2018
• Judge Dorothy C. Kim of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Five until April 30, 2018
• Judge Curtis A. Kin of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Five until May 31, 2018
• Judge Gail Ruderman Feuer of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until May 31, 2018
• Judge James Edward Rogan of the Orange County Superior Court, will be sitting Pro-Tem in Division Eight until April 30, 2018
• Judge Allan Goodman (Retired) of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Eight until May 31, 2018

For today's appellate sanctions case, click here, to see 2/4 remand for the trial court to determine fees on appeal.

On May 30 at the LA Hotel Downtown, there will be a Joint Litigation Conference presented by CAALA, ASCDC, and LA-ABOTA, on Promoting Civility & Ethics in the Courtroom, and 4/2's Justice Douglas Miller will be speaking.

More CSC Number-Crunching

Today's DJ presents part two of Kirk Jenkins' analysis of the Cal Supreme Court using hard data, in The Justices of the California Supreme Court: 2017 By The Numbers.

• Civil. On the civil side in 2017, Chief Justice Cantil-Sakauye and Justice Chin led the court, each voting in the majority in 40 of the 41 civil cases they participated in, or 97.56 percent. Justice Werdegar was next, voting with the majority in 97.14 percent of her civil cases. Justices Cuéllar and Liu were tied, each voting with the majority in 92.86 percent of the court's civil cases, while Justice Corrigan was close behind at 92.68 percent. Justice Kruger was least often in the majority, voting with the majority in 90.48 percent of civil cases.
• Civil. In 2017, the evidence suggests that Chief Justice Cantil-Sakauye and Justices Werdegar, Chin, Corrigan and sometimes Cuéllar formed a fairly cohesive central wing of the court in civil cases. Justices Werdegar and Cuéllar agreed in 97.14 percent of civil cases. The chief justice and Justice Werdegar agreed in 97.06 percent of civil cases. The chief justice agreed with Justice Chin in 95.12 percent of cases, and with Justice Corrigan 95 percent of the time. Justices Werdegar and Chin agreed in 94.12 percent of their cases. Meanwhile, the eight combinations of Justices scoring lowest in civil case agreement all included at least one Democratic appointee -- Justices Cuéllar and Liu, 90.48 percent; Justices Corrigan and Liu, 90.24 percent; Chief Justice Cantil-Sakauye and Justice Liu, 90.24 percent; Justices Chin and Liu, 90.24 percent; Justices Kruger and Werdegar, 88.57 percent; Justices Corrigan and Cuéllar, 87.8 percent; Justices Kruger and Chin, 87.8 percent; and Justices Kruger and Cuéllar, 83.33 percent.

Conclusions:

• First, despite increasing controversy about the lengthy Werdegar vacancy, the court seems to be coping so far with no reduction in its productivity.
• Second, delays in processing cases continue to be a problem, with non-death cases routinely taking a year and a half to oral argument, and death penalty cases taking eight to 10 years to be argued.
• Third, reports in 2015 and 2016 that the court might shift leftwards in death penalty cases seem to be premature, at least for now.
• Fourth, largely because the Republican nominees' agreement rate tends to be somewhat higher, the court's moderate center has led the court so far -- Chief Justice Cantil-Sakauye and Justices Chin, Werdegar and either Cuéllar or Corrigan in civil cases, and the chief justice and Justices Chin, Werdegar and Kruger in criminal cases.
• So far, the shift leftwards hasn't happened, but with Justice Werdegar in the dominant center on both sides of the docket, Gov. Brown's opportunity to name her successor promises to tell us a lot about where the court is likely to go in the next several years.

Appellate articles galore

Today's DJ is chock-full of appellate goodness.

First, Justice Cuellar pens Access to Justice In Any Language, concluding, "The more California can show the country and the world that it's possible to deliver justice equally even when millions are limited English speakers, the more we will help build a world bridging the divide between culture and language, where people find common ground and institutions are legitimate because they can hear every voice, in any language."


Second, Kirk Jenkins (now at H&L), crunches out The California Supreme Court: 2017 By The Numbers, diving into data from last year to see what can be learned. He interprets the data to suggest that the "court's center has dominated in most areas of the law," rather than having taken a turn toward the left. In 2017 the court decided 84 cases, 42 civil and 42 criminal. Civil cases took an average of 641 days from grant to review to oral argument. The article has a nifty chart that shows the 2d DCA has the most civil cases taken (at 17, and with a 58% reversal rate). The prolonged vacancy (Justice Werdegar's seat) has apparently not slowed down the court's productivity. How important is publication for getting review? Well, 21% of civil cases taken were unpublished and 55% of criminal cases were unpublished.

Third, moving to SCOTUS, Susan Yorke of CALG presents The Record on Appeal Versus the Internet Age: "A recent testy interchange between Justices Anthony Kennedy and Sonia Sotomayor during oral argument at the U.S. Supreme Court highlighted a tension between the ubiquity of information on the internet and the constrained nature of the record on appeal."

Fourth, Jeffrey Bornstein and Andrew Spore of Rosen Bien Galvan & Grunfeld LLP, offer Sometimes it's good to be wrong: Gorsuch's surprise vote, about Sessions v. Dimaya.

The NLJ reports Stanford Law's Jeffrey Fisher, Veteran SCOTUS Lawyer, Joins O’Melveny as Special Counsel.

For some writing tips, see Judges Discuss Good and Bad Legal Writing.
FYI, the 9th Circuit has adopted the New Law Clerk Hiring Plan: Applicants Must Complete 2d Year of Law School.

CAL's Committee on Appellate Courts wants you!

The California Lawyers Association's Litigation Section's Committee on Appellate Courts invites interested applicants to apply. The CAC is a collegial, active committee that endeavors to:

·  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 initiating 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.

CAC typically meets by phone once per month and in person once per year. Members serve a three-year term. The Committee expects each member to help with at least one of the following projects per year:

• organize or help organize an MCLE program (either a webinar or a live panel);
• write an article for California Litigation journal;
• prepare a written MCLE test;
• draft and finalize the committee’s comments on a proposed rule change;
• assist in the organization of the Appellate Summit;
• assist the executive committee as requested.

Application Process:

•      To apply, please send a cover letter, completed application form, and resume to the Committee Secretary, Erin Smith, at esmith@fvaplaw.org, by May 31, 2018.  All application materials will be kept confidential among the current Committee members.
• All applicants will be informed of membership decisions by September 1, 2018.  The term for new members will start on September 1.
  
  
  If you have any questions about the Committee or application process, please do not hesitate to contact the Committee Secretary, Erin Smith, at (510) 858-7358 or esmith@fvaplaw.org, or the Committee Chair, Karli Eisenberg, at (916) 210-7913 or Karli.Eisenberg@doj.ca.gov.  

SoCal Hosts AJAI 2018

Something exciting and exceedingly appellatey happened this past week in SoCal: AJAI at the Pacific Palms Hotel in the City of Industry! That stands for "Appellate Judicial Attorneys Institute" and is an annual conference run by the Judicial Council for Court of Appeal and Supreme Court research attorneys. Yes, it's a big deal, with about 200 research attorneys, justices, judges and professors, from around the state attending and speaking. So what took place? Well, the Chief kicked things off with an address on Wednesday afternoon. Then there were sessions about CEQA, Criminal Law, Marijuana Law, more CEQA, Prop. 57, and an address by Prof. Hasen ("Cheap Speech and What it Has Done to American Democracy"). On Thursday, there were programs on Criminal Fines and Fees, Motions, Writs, a presentation on The Published Life of a Court of Appeal Opinion (by the State Reporter of Decisions, Lawrence Striley), Protective Nondisclosure, ICWA, Reflections Judicial Independence (by Justice Jenkins), Prop. 66, Constitutional Law, Criminal Sentences, Ethics & Social Media, etc., etc., continuing with programs on Friday. In short, a pretty spiffy conference, with some amazing presentations (just based on the speakers list, which also included Justices Robie, Epstein, Banke, Perluss, Streeter, and Humes, as well as many superior court judges and law profs). It's great to know that AJAI exists and that research attorneys can experience the joys of high quality continuing education aimed directly at their needs.

9th Cir. Seats

Seating for 8!

Today's DJ presents Where are the Trump Judges: For a president who repeatedly touts his success at filling federal judicial openings, Trump has yet to make an impact on the 9th U.S. Circuit Court of Appeals. With seven openings and only one named candidate with a likely path to the bench, Trump has yet to move successfully on the remaining six.

• "By August, when Idaho-based judge N. Randy Smith takes senior status, Trump will have an eighth spot to fill on the 29-judge court."
• "He has nominated two people to the court thus far. One, Hawaii’s former attorney general Mark J. Bennett, nominated in February, enjoys the support of his Democratic home state senators and appears to have an easy path ahead of him."
• "In Oregon, where Trump has tried to replace conservative 9th Circuit stalwart Diarmuid O’Scannlain, who also took senior status in 2016, with his former clerk, federal prosecutor Ryan Bounds, the president appears to have hit a wall. The state’s two Democratic senators cried foul when Bounds’ name was announced in September, saying the president had not properly consulted with them."
• Last summer, the White House sent Feinstein and Harris a list of five potential names for a California 9th Circuit seat. At that point, only one seat was open on the court. On the list were Washington, D.C.-based Kirkland & Ellis LLP partner Daniel Bress, Los Angeles-based Munger, Tolles & Olson LLP partner Daniel Collins, Los Angeles-based Jenner & Block LLP partner Kenneth Lee, Judge James Rogan, who sits on the Orange County Superior Court, and Burbank-based Horvitz & Levy LLP partner Jeremy Rosen.