Your Bar fees are at stake!

Be sure to check out the State Auditor's review of the Bar's proposed fee increases!

Here's the cover letter:

This report concludes that State Bar should balance its need for fee increases with other actions to raise revenue and decrease costs. We evaluated State Bar’s proposed fee increases and determined that the amounts were higher than necessary for 2020. State Bar’s proposal would increase active attorneys’ mandatory fees from $383 in 2019 to $813 in 2020. However, we found costs that could be reduced or delayed and recommend total annual fees in 2020 of $525 for each active licensee instead. For example, State Bar included in its calculations a plan to hire 58 new staff members to reduce its backlog of cases involving attorney misconduct. However, certain changes State Bar implemented from 2017 through early 2019 to improve its discipline process may decrease the number of employees it needs. Thus, we recommend an initial increase of only 19 new staff members in 2020. We also recommend reductions to the fee amounts proposed by State Bar to fund specific programs and projects, such as capital improvements and information technology projects, because some projects and improvements are unnecessary at this time or too early in the planning phase to justify immediate funding.

Furthermore, to potentially offset future fee increases, we found that State Bar could increase the revenue it receives from leasing space in the building it owns in San Francisco. State Bar should also continue to implement performance measures that have the potential to increase efficiency and decrease costs. Finally, we recommend that the Legislature adopt a multiyear fee-approval cycle that will allow State Bar to better engage in its own fiscal planning and still maintain the Legislature’s necessary oversight. Specifically, we suggest a three-year fee-approval cycle that includes fee reviews and a fee cap. As part of a fee review, State Bar would need to demonstrate that it is performing its key functions effectively and justify any proposed fee increases.
Respectfully submitted,
ELAINE M. HOWLE, CPA
California State Auditor 

2d DCA pro tem update

The following are currently sitting on assignment:

·  Judge Colin P. Leis of the Los Angeles Superior Court, will be sitting Pro-Tem in Division One until May 31, 2019

·  Judge Gregory J. Weingart of the Los Angeles Superior Court, will be sitting Pro-Tem in Division One until June 30, 2019

·  Judge Allan J. Goodman (Retired) of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until June 30, 2019

·  Judge Serena R. Murillo of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until May 31, 2019

·  Judge Ann I. Jones of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until June 30, 2019

·  Judge Kim Garlin Dunning of the Orange County Superior Court, will be sitting Pro-Tem in Division Four until June 30, 2019

·  Judge Natalie P. Stone of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until May 31, 2019

·  Judge Rashida A. Adams of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Eight until June 30, 2019 

Is a hot bench a bad thing?

See Law360's High Court's 'Hot Bench' Approach Comes With Risks.
Also of tangential interest, this blog post from issues facing the 3d Circuit.
And see Paul Weiss Expands New SCOTUS Practice as More Follow Shanmugam From Williams & Connolly

You are invited!

An invitation from the Chair of the LA County Bar Appellate Courts Section:

If you are reading this blog, you are clearly an appellate nerd.

If you are not a member of LACBA’s Appellate Courts Section (ACS), you are clearly missing out.

ACS is one of the largest and oldest professional associations of appellate lawyers in the country.  The most obvious benefit of membership is regular CLE programs taught by sitting justices, appellate research attorneys and top appellate attorneys in town on the most pressing and relevant topics.

Perhaps a less obvious benefit but equally important is that you are joining a community of lawyers  who at times will serve as your mentor, and at others refer cases to you or partner with you on a case. As appellate attorneys, our primary source of referrals is other lawyers.

The community you will join includes the rare breed of lawyers who seek to promote the highest standards of our profession. Our members regularly serve as pro bono counsel in cases identified by the Appellate Self-Help Clinic at the Second Appellate Court of Appeal and volunteer to teach high school students about our system of government through the ACE program. As a trusted and valued voice on appellate matters, we also regularly provide feedback on proposed revisions to legislation, court rules and practices at the state and federal level with the aim of promoting the fair and efficient working of our judicial system.

I invite you to learn more about us. Come as my guest for our final program before we start our summer break on May 28, 2019, 4:30-6 p.m. at Manatt, Phelps & Phillips, 11355 West Olymic Blvd., Los Angeles:  Justice Martin Tangeman and Appellate Attorney Katy Graham from the Second Appellate District Court of Appeal will speak about effective appellate brief writing techniques. (Send me an email if you are interested.)

Hope to see you at a future event.

Sarvenaz “Naz” Bahar

Chair, Appellate Courts Section

sb@baharlaw.com

"Justice Ming Chin by the numbers"

Cal Supreme Court StatMaster Kirk Jenkins is back with a new series of monthly columns: analytics-driven profiles of each Supreme (by seniority). Today's DJ features Justice Ming Chin by the numbers. What does an "analytics-driven profile" look like? Well, it starts out like this:

• Justice Chin has voted in 937 civil cases and 1,289 criminal, quasi-criminal, juvenile, disciplinary and mental health cases. He has written majority opinions in 129 civil cases -- 13.77 percent of the total number of cases he has participated in. His busiest year was 1997, when he wrote 10 majority opinions. His lightest year -- including his partial year in 1996 -- was 2014, when he wrote only one majority. Justice Chin has written 223 majority opinions in criminal cases, or 17.3 percent of the total. His busiest year was 2002, when he wrote 16 majority opinions in criminal cases. His lightest years -- leaving aside his partial years in 1996 and 2019 -- were 1998 and 2017, when he wrote majority opinions in five criminal cases.

And it ends like this:

• The data shows that throughout his 23-year career, Justice Chin has been one of the votes to watch on the California Supreme Court: Regardless of whether the ultimate outcome was arguably "conservative" or "liberal," Justice Chin is nearly always with the majority. Justice Chin appears, at least in civil cases, to file dissenting opinions strategically, when flipping a single vote will reverse the result of the case. Throughout his tenure, Justice Chin has voted fairly consistently with his conservative colleagues.

2d DCA pro tem update

The following are currently sitting on assignment:

• Judge Colin P. Leis of the Los Angeles Superior Court, will be sitting Pro-Tem in Division One until May 31, 2019
• Judge Gregory J. Weingart of the Los Angeles Superior Court, will be sitting Pro-Tem in Division One until June 30, 2019
• Judge Allan J. Goodman (Retired) of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until April 30, 2019
• Judge Serena R. Murillo of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until May 31, 2019
• Judge Ann I. Jones of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Three until June 30, 2019
• Judge Kim Garlin Dunning of the Orange County Superior Court, will be sitting Pro-Tem in Division Four until April 30, 2019
• Judge Natalie P. Stone of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Seven until May 31, 2019
• Judge Rashida A. Adams of the Los Angeles Superior Court, will be sitting Pro-Tem in Division Eight until June 30, 2019

The Traynor lives on!

The 50th Annual Roger J. Traynor Appellate Moot Court Competition took place at John F. Kennedy University College of Law on April 6 and 7, 2019. The Traynor is a nationally recognized appellate competition for California law schools. The hallmarks of the competition are the use of an actual case from the California Court of Appeal, equal emphasis on brief writing and oral argument, and judging by appellate practitioners, trial judges, and justices of the appellate courts.

This year’s problem involved the question of whether police may obtain a warrantless blood sample from an unconscious suspect. The issue posed is currently pending before the California Supreme Court and was argued on April 23 in the United States Supreme Court. 

Ten teams from law schools throughout California submitted briefs and faced off in oral arguments on the first day of the event. The two teams with the best combined scores from briefs and oral arguments competed in the final round. This year’s final consisted of Empire College of Law against U.C. Berkeley. Justice Ignacio Ruvolo (Ret.), Justice Alison Tucher, and Judge Helen Williams presided over the final round and chose Berkeley as this year’s winner of the Roger J. Traynor Award.

Other awards included Best Brief, U.C. Berkeley (with Empire in second place), Excellence in Appellate Advocacy, U.C. Berkeley (with Empire in second place), and Best Individual Oralist Chantelle Stewart of Trinity Law School. Individual Merit Awards for oral argument also went to Emily Pincin of Loyola Law School, Samantha Williamson of San Joaquin College of Law, Bryan Delgado of McGeorge School of Law, and Eric Smith of Empire.

In 2018, it was announced that previous long-term corporate sponsorship of the Traynor was ending and it appeared that the 49th Traynor was doomed to be the last. With the help of attorney David Glassman and the hospitality and support of Dean Barbieri and the JFK College of Law, attorney Miriam Billington stepped in as administrator to ensure that “Traynor 50” would not only succeed but mark the start of a new half-century of this respected tradition.

Costs were kept low but the event cannot run on registration fees alone. This year, the entrance fee was $200, less than half of the typical registration cost for a comparable moot court competition. Several donors pledged their support and more are sought—if you, your firm, or company would like to underwrite any aspect of Traynor 2020, or have one of the awards named for you, please contact info@traynormoot.org. 

Teams are encouraged to indicate interest in competing in next year’s Traynor by July 1. Enrollment is limited so contact Miriam Billington at info@traynormoot.org as soon as possible to reserve a spot.

Pictured at the 2019 Traynor after Sunday's final argument on April 7 at JFK Law School in Pleasant Hill.

Back row: Judges for the final round were Hon. Helen E. Williams, Justice Alison M. Tucher, and Justice Igancio J. Ruvolo (Ret.) 

Front row: Empire Law School's team (Natalie Albanna, Eric Smith, and Richard Horrell), took second place in the final; 

Chantelle Stewart of Trinity Law School was named Best Oralist, 

and the team from UC Berkeley, comprised of Sebastien Wadier and Jenna Zhang, won the final argument, taking the 2019 Traynor Award.

Photo Credit: Ben Glassman

CLA seeks nominees for the ALHoF

Appellate Lawyer Hall of Fame

The Committee on Appellate Courts seeks nominations for its 2019 Appellate Lawyer Hall of Fame Award. This award is bestowed upon attorneys who have excelled as appellate lawyers and whose careers exemplify the highest of values and professional attainment. To read about the Inaugural Appellate Lawyer Hall of Fame award recipient, Ellis J. Horvitz, click here.

Deadline -- By 11 PM on Monday, May 20, 2019, please email all nomination materials with “ALHOF 2019” in the subject line to john.boxberger@calawyers.org.

Eligibility -- Any dues-paid member of the California Lawyers Association may nominate a member of the State Bar of California (either currently active or, if retired, previously active). Self-nominations are not accepted.

For information on the Appellate Lawyer Hall of Fame, click here.

Bedsworth: Evolution Is a Crock

In this month's column in The Recorder, Evolution is a Crock, Beds once again makes a devastatingly strong case that humanity is idiotic.

N.B. ax impaled on car roof.
{P.S. "N.B." does not mean "North Bound."}

Cake story here

Want more Beds (and who doesn't?)? Then enjoy this penultimate paragraph today here:

In its brief, the City has asserted that it is entitled to judgment based on design immunity. The jury did not reach the portion of the special verdict relating to design immunity. There is, therefore, nothing for us to review. Making a ruling on this subject in our court would be the equivalent of granting a motion for summary judgment or directing a verdict in the City’s favor. Neither is part of our job description.

DJ profiles Judge Bea

Today's DJ profile is Old World Gentleman: Never mistake good manners for friendliness, says 9th Circuit conservative Judge Carlos Bea. Some highlights:

• He’s the “Most Interesting Man on the 9th Circuit.” 
• Escaping the violence of the Spanish Civil War, Bea and his family came to the United States when the future Article III judge was a boy. They traversed the country in a 1938 Buick and settled in Los Angeles.
• He spent his college years under an order of deportation but took his case to the Board of Immigration Appeals and won. He played basketball for Cuba in the 1952 Helsinki Olympics and briefly as a professional in Madrid.
• Now, he occasionally drives around San Francisco in a vintage Rolls Royce and lunches with a group known as the Calamari Club, comprised of the city’s old political and financial elite.
• At 85, Bea is the oldest of the court’s active judges, and he isn’t showing signs of slowing down. 
• Bea was born in 1934 in San Sebastian, Spain, a coastal town in the Basque region. At 5, prompted by his widowed mother’s fears of a Nazi invasion, Bea and his family fled to Cuba to escape his country’s civil war and the ascendancy of its eventual dictator, Francisco Franco.
• Settling in Los Angeles, Bea grew up near Hancock Park and attended University High School, alma mater to fellow future 9th Circuit Judges Stephen Reinhardt and Raymond C. Fisher. It was during that time — when his family became entangled in a civil lawsuit — that Bea developed an interest in becoming a lawyer.



"I very much like being involved
in the en banc process."

What is the Gov looking for in judges?

The MetNews reports: Newsom Will Look for ‘Humility,’ Above All, in Appointing Judges

The “top quality” Gov. Gavin Newsom will seek in the judges he appoints will be “humility,” his legal affairs secretary, Martin Jenkins, has related.

He said Newsom, in a conversation with him, listed intellect, integrity and courage as being among those other qualities. The former jurist, whose father was a janitor, remarked that he agrees that humility—which he said includes the ability “to listen”—is the most important attribute to look for in applicants for judgeship.         Newsom’s father, William Newsom, who died Dec. 12, was a justice if the First District Court of Appeal from 1978-95. 

SLAPP day at the Supreme Court

The morning of May 7, the Cal Supremes will hear arguments in two anti-SLAPP cases:

Wilson v. Cable News Network, S239686

(B264944; 6 Cal.App.5th 822)  Petition for review after the Court of Appeal reversed an order granting a special motion to strike in a civil action. This case presents the following issue:  In deciding whether an employee’s claims for discrimination, retaliation, wrongful termination, and defamation arise from protected activity for purposes of a special motion to strike (Code of Civ. Proc., § 425.16), what is the relevance of an allegation that the employer acted with a discriminatory or retaliatory motive?   

Monster Energy Co. v. Schechter, S251392

(E066267; 26 Cal.App.5th 54)  Petition for review after the Court of Appeal affirmed in part and reversed in part an order granting in part and denying in part a special motion to strike. The court limited review to the following issues:  (1) When a settlement agreement contains confidentiality provisions that are explicitly binding on the parties and their attorneys and the attorneys sign the agreement under the legend “APPROVED AS TO FORM AND CONTENT,” have the attorneys consented to be bound by the confidentiality provisions?  (2) When evaluating the plaintiff’s probability of prevailing on its claim under Code of Civil Procedure section 425.16, subdivision (b), may a court ignore extrinsic evidence that supports the plaintiff’s claim or accept the defendant’s interpretation of an undisputed but ambiguous fact over that of the plaintiff?


Over on the SCOTUS side of things, see Law360's Supreme Court To Lawyers: Can You Keep It Short?: "Beginning in July, Supreme Court practitioners will be permitted fewer words [13K as opposed to the existing 15K] to make their cases and less time to file reply briefs as a result of rule changes adopted by the justices Thursday."

CLA Solo Summit w/Great Appellate bits

Solo & Small Firm Summit:
The 21st Century Law Firm

Technology and Strategic Solutions for the Practice of Law and Management of a Law Firm

Earn up to 13.75 hours of MCLE credit; includes Legal Ethics, Competence Issues, Elimination of Bias & Legal Specialization

Highlights

• A Conversation with California Supreme Court Associate Justice Carol A. Corrigan
• Preserving an Adequate Record for Appeal: From Hi-tech to the Dark Ages in 60 Days featuring Justice Eileen Moore and Justice David A. Thompson, and OCSC Judge Peter J. Wilson

Another Supreme joins the AAAS

California Supreme Court Justice Goodwin H. Liu Elected to American Academy of Arts and Sciences

He joins a group of more than 200 luminaries honored this year, including former First Lady Michelle Obama and Chief Judge Merrick Garland of the U.S. Court of Appeals D.C. Circuit.

He is the state's second Supreme Court justice to join the academy—his colleague, Justice Mariano-Florentino Cuéllar, was elected last year.

Appellate tidbits

• Monday's DJ's Moskovitz on Appeals column was titled Waive Oral Argument? and concludes that "waiving oral argument might, in some cases, be best for your client."
• This Law.com article here [and Law360's article here] notes that superstar appellate lawyer Chris Landau made $3M last year at Quinn -- which was a big drop from the $11M he made at Kirkland the year before. And he anticipates receiving over $300K annually from Kirkland in benefits after he retires. Oh yeah, he's also "the Trump administration's pick for U.S. ambassador to Mexico," which is why he had to publicly disclose his finances. (BTW, "M" = million. Yeah, $11 million dollars. American dollars. Wow.)
• The 6th DCA's courtroom is undergoing renovation, so the court has announced that "Oral arguments scheduled in May will be held at the Downtown Superior Court located at 191 N First St., San Jose, Department 14 (Oral argument hearing room) on the 5th floor."
• And see The Recorder for What Happened When Juror 10 Went Rogue

Appellate Proposals out for comment

The Judicial Council’s Appellate Advisory Committee invites comment on 8 proposals by June 10, 2019.

Appellate Procedure: Notice of appeal and the record in civil commitment cases, SPR19-01
Item Number: SPR19-01
Submit Comment Online Or, email: invitations@jud.ca.gov

The Appellate Advisory Committee proposes a new rule of court describing the required contents of the normal record on appeal for civil commitment cases and a new notice of appeal form for civil commitment cases. This proposal is in response to a suggestion from a member of this committee and is intended to provide needed guidance to litigants and the courts and ensure that appellate records in civil commitment cases are complete.

Appellate Procedure: Form of Filed Documents in the Appellate Division, SPR19-02 (PDF, Submit Comment Online Or, email: invitations@jud.ca.gov

The Appellate Advisory Committee proposes the adoption of a new rule of court governing the form of filed documents in the appellate division. The rule is intended to provide clarity to litigants, court staff, and judges as to the proper formatting of applications, motions, and other documents to be filed in the appellate division. This proposal is in response to a suggestion from a member of this committee.

Appellate Procedure: Advisement of Appellate Rights in Juvenile Cases, SPR19-03 (PDF, Submit Comment Online Or, email: invitations@jud.ca.gov

To promote greater awareness of parents’ and legal guardians’ appellate rights in juvenile court proceedings, the Appellate Advisory Committee proposes amending the rule regarding advisement of appellate rights to remove the limitation that the court need only provide this information to parents and guardians who are present at the hearing that resulted in the judgment or order. The committee also proposes the adoption of a new optional form notice for clerks to send with court orders following a hearing to provide the advisement. This proposal originated with a suggestion from an attorney in San Diego.

Appellate Procedure: Oral Argument in Appellate Division Appeals, SPR19-04 (PDF, 1387
Submit Comment Online Or, email: invitations@jud.ca.gov

To increase efficiency and provide guidance for litigants, the Appellate Advisory Committee proposes amending the rule regarding oral argument in limited civil and misdemeanor appeals to provide that oral argument will not be set in cases presenting no arguable issues and to set forth a procedure for waiving oral argument. The committee also proposes the adoption of two optional forms, one for limited civil cases and one for misdemeanor cases, to assist litigants in waiving
oral argument if they choose to do so. This proposal originated with suggestions from a presiding judge of an appellate division and a member of the committee.

Appellate Procedure: Word Limits for Petitions for Rehearing in Unlimited Civil Cases, SPR19-05
Submit Comment Online Or, email: invitations@jud.ca.gov

To establish limits on briefing that reflect the limited scope of petitions for rehearing, the Appellate Advisory Committee proposes reducing the maximum length of petitions and answers by amending the rule that governs the content and form of briefs in the Court of Appeal. Currently, the rule provides maximum limits of 14,000 words for briefs produced on a computer and 50 pages for briefs produced on a typewriter. These limits apply to all types of briefs, including petitions for rehearing and answers to those petitions. This proposal would provide lower limits of 7,000 words and 25 pages for petitions for rehearing and answers. This proposal arises out of suggestions from appellate practitioners, including a current committee member, that the committee consider reducing word limits for civil briefs in the Court of Appeal.

Appellate Procedure, Juvenile Law: Access to Juvenile Case Files in Appellate Court Proceedings, SPR19-06
Submit Comment Online Or, email: invitations@jud.ca.gov

The Appellate Advisory Committee and the Family and Juvenile Law Advisory Committee propose amended rules and new and revised forms to implement recent Judicial Council–sponsored legislation amending the statute that specifies who may access and copy records in a juvenile case file in an appeal or writ proceeding challenging a juvenile court order. The statutory amendment clarified that people who are entitled to seek review of certain orders in juvenile proceedings or who are respondents or real parties in interest in such appellate proceedings may, for purposes of those appellate proceedings, access and copy those records to which they were previously given access by the juvenile court. This proposal would implement the legislation by updating the rules relating to juvenile appeals to include provisions relating to persons with limited access to the juvenile case file and the limited record that must be prepared and provided to these persons. The committees also propose a new information sheet and a notice on certain forms regarding the requirement to seek authorization from the juvenile court to access records in the case file before commencing an appeal.

Appellate Procedure: Uniform Formatting Rules for Electronic Documents, SPR19-07
Submit Comment Online Or, email: invitations@jud.ca.gov

To provide consistency and clarity, the Appellate Advisory Committee and the Information Technology Advisory Committee propose revising California Rules of Court, rules 8.40, 8.44, 8.71, 8.72, 8.74, 8.204, and 8.252 to create uniform formatting rules for electronic documents filed in the appellate courts. The rules currently provide some formatting requirements for electronic documents, but they do not include various local rule requirements such as bookmarking. Moreover, local rules around the state differ in their requirements and scope. By establishing uniform, comprehensive rules for all appellate courts, this proposal will ease the burden on filers caused by differing format rules. This project initially focused on rules for exhibits and bookmarking, but was expanded in scope to include other formatting requirements. It originated from a suggestion by a member of the Joint Appellate Technology Subcommittee of the Appellate Advisory Committee and the Information Technology Advisory Committee.

Appellate Procedure: Service Copy of a Petition for Review, SPR19-08 (PDF, 250 KB)
Submit Comment Online Or, email: invitations@jud.ca.gov

To update court procedures and provide clarity, the Appellate Advisory Committee and the Information Technology Advisory Committee propose amending the rule regarding petitions for review in the California Supreme Court to remove the requirement to send to the Court of Appeal a separate service copy of an electronically filed petition for review. Under current practice, when a petition for review is accepted for electronic filing by the Supreme Court, the Court of Appeal automatically receives a filed/endorsed copy of the petition through the electronic filing service provider (EFSP). Thus, in actual practice, the electronic filing of a petition satisfies the requirement to serve the Court of Appeal, and there is no need for a petitioner to serve the Court of Appeal with another copy as required by the rules. This proposal does not change the requirement to serve the Court of Appeal with a separate copy if a petition for review is filed in paper form. This proposal originated from a suggestion submitted by an appellate court administrator.

7 Tips

The Recorder's On Appeals column features Claudia Ribet (one of only 3 lawyers in California certified as a specialist in both family law and appellate law) in 7 Tips for Family Lawyers to Avoid Giving Appellate Counsel a Heart Attack, which includes advice of general application. Her list of 7 sins:
1. Failing to make offers of proof.
2. Not requesting a statement of decision.
3. Forgetting to ensure rulings (and reasonings) are reported in the transcript.
4. Waiting until the appeal to order transcripts.
5. Ignoring the need for appellate fee advances.
6. Not knowing how to post a bond.
7. Waiting too long to involve an appellate specialist in high-stakes family law litigation.

Also of note: Supreme Court Committee Issues Advice About Appellate Disqualification to a Former Trial Court Judge

Too bad the court couldn't have waited ten days to issue this one here.

CLA Litigation Section April 2019 update

The CLA Litigation Section's monthly update is now available here.
(Thanks, Justice Moore! FYI, Justice Moore had an article on the front page of the 4/5/19 DJ, Lawyers with Military Spouses.)
(Are you not a CLA member? Why not? 50,000 other lawyers are!)