SLAPPs galore

It's shaping up to be a very slappy day: one, two, three, four, and it's not even noon yet...

Also, Law360 has Coronavirus Q&A: Buchalter's Appellate Practice Chair (M.C. Sungaila).

9th Cir. news

Today LA Times has Some federal judges plan to retire when Trump exits. Will Biden be able to replace them?

• Trump’s 10 appointments to the court, more than a third of its active judges, have moved the 9th Circuit to the right. Biden could tilt it back again if his appointments win confirmation
• Among the Clinton appointees qualified to take senior status are 9th Circuit Judges Richard A. Paez, William A. Fletcher and Marsha S. Berzon.

And see Which Ninth Circuit Judges Were Waiting For A Democratic President to Take Senior Status?

For other 9th Cir. new, see Left Coast Appeals on Know Your 9th Circuit Panel.

DJ profiles Justice Raphael

Today's DJ profiles 4/2's Justice Raphael in Committed to Getting it Right: Court watchers praise the work of 4th District Court of Appeal Justice Michael J. Raphael.

• Raphael, a former federal prosecutor, was appointed to Division 2 of the 4th District Court of Appeal in 2018 by Gov. Jerry Brown after several years overseeing civil cases as a Los Angeles County Superior Court judge. Before taking the bench, he served 12 years as an assistant U.S. attorney in the Central District, including as chief of the criminal appeals section from 2007 to 2012.
• As someone who enjoys "the process of writing, whether it's a brief or an opinion ... this is the job I would most want to do," he said. "The writing is important. I want to get it right and clear and help the clarity of the law."
• Raphael said his main goal in every case is clarity--for the parties and the bar at large, but also for his colleagues in "pink sheet" comments during the opinion-writing process. "If I see something that is unclear or might be confusing or cause problems, I want to try to get it changed," he said.

Justice Brown to Keynote ADC Conference

 The Association of Defense Counsel of NoCal and Nevada presents a virtual conference for its 61st Annual Meeting (register here), and ....

Keynote Address
Friday, December 11 | 12:00pm - 12:30pm

Hon. Janice Rogers Brown (Ret.)
United States Circuit Judge of the United States Court of Appeals for the District of Columbia (2005-2017)
Associate Justice of the California Supreme Court (1996-2005)

Judge Janice Rogers Brown, former United States Circuit Judge of the United States Court of Appeals for the District of Columbia Circuit (ret. 2017), former Associate Justice of the Third District Court of Appeal, and former Associate Justice on the California Supreme Court.  Judge Brown, who grew up in rural Alabama and attended college in California during the turbulent 1960’s, is known as an expert on constitutional law and judicial restraint. During her 23 years as a judge, her rulings were not easily pigeonholed, and her passionately written dissents are well-known.

She will share her inspiring views on “Making a Living or Making a Life"

A little appellate news

Bloomberg Law has Feinstein Won’t Lead Senate Judiciary Democrats in New Congress
Bloomberg Law also has Skadden Launches SCOTUS Practice with Dvoretzky from Jones Day

And on this topic Law.com has Skadden Snags Shay Dvoretzky From Jones Day to Lead New SCOTUS Practice -- Dvoretzky clerked for the late Justice Antonin Scalia, has argued a dozen SCOTUS cases, and had been at Jones Day for 18 years.

Law360 has Skadden Taps Jones Day Ace To Lead Supreme Court Group and Sen. Feinstein Says She'll Cede Top Judiciary Committee Spot

And don't miss Judge Karnow's latest masterpiece in the DJ, this one titled Officer of the Court:

The lawyer’s job description is this: officer of the court. This is true without regard to whether the lawyer ever steps foot in the courthouse.

Everything collapses when judges can't trust counsel. 

Remote Argument Survey Highlights

The 9th Circuit presents: Remote Argument Survey Highlights Positives and Negatives of Streaming During Pandemic

• The United States Court of Appeals for the Ninth Circuit has been posting videos of appellate courtroom proceedings for 10 years and streaming video of oral arguments held in court for much of that time. Now, due to COVID-19 restrictions, each oral argument stream is a convergence of videos from a variety of locations: lawyers’ offices or homes and judges’ chambers or homes. En banc proceedings, requiring over a dozen feeds to make up the hearing, are even being held.
• According to a survey sent out in late August by Molly Dwyer, clerk of court for the Ninth Circuit, the video process is well-established and is getting an important job done, but all parties look forward to meeting in person, again. The survey was sent to about 300 lawyers who have participated in the video arguments; 219 responded.
• The first COVID-driven remote hearings were held the week of March 23. Between then and the end of April, 64 arguments were heard over 51 days. May, June and July saw another 371 arguments over 119 days. Eighty-five percent of participants did so via video connections, the rest via audio (phone) connections.
• lawyers reported reasonable satisfaction with the remote hearings, with 47 percent stating the experience was similar to in-person proceedings, while 15 percent said remote hearings were better. A sizable number, 29 percent, said remote hearings were worse than in-person, while 9 percent said the remote hearings were much worse.
• the survey revealed that a large proportion of participants thought the level of engagement was similar or better than in-person arguments. While only 14 percent said the level of engagement was lower, 78 percent said it was similar to in-person proceedings and 8 percent said they thought engagement was higher than in-person hearings.
• When lawyers were asked if they would appear remotely again, the splits were greater, with 13 percent saying they would appear anytime remote hearings are offered, 32 percent said they would only participate due to the current or another pandemic, 37 percent said they would appear if the opposing counsel was doing so, while 18 percent said perhaps they would appear remotely.
• A clear bright spot in the survey shows 74 percent of lawyers surveyed rating the technical assistance offered by the court as excellent, with 21 percent calling it very good, and only 5 percent said the technical assistance needs improvement.

9th Cir. Reminder re new rules taking effect next week!

On December 1, 2020, some important new and revised Ninth Circuit Rules will be going into effect, including a completely rewritten Circuit Rule 30-1 and significantly revised related rules governing the excerpts of record. The new and revised excerpts rules, along with two unrelated rule changes, are available now on our website at https://www.ca9.uscourts.gov/content/view.php?pk_id=0000000682. Please review these rules carefully before submitting any briefs or excerpts of record on or after December 1. 

Major Changes:
* Separate Index (Table of Contents) Volume required for multi volume excerpts, no index or TOC to be included in numbered volumes
* Single Volume excerpts of no more than 300 pages can include Index/TOC
* Excerpts must be consecutively paginated through all volumes in a set other than separate index volume, including caption pages, blank pages, certificates, etc.
* Social Security cases- complete CAR as filed in district court must be submitted with original pagination in new separate docket event called Social Security Certified Administrative Record at the time the initial excerpts are submitted (or with supplemental excerpts if pro se appellant)
* Establishes new standard citation format for citing in the briefs to the excerpts and social security record

Additional Changes and Important Clarifications:
* Purpose of the rule is highlighted and clarified, rule itself is streamlined with specific examples moved to committee notes
* Citations directly to the record in counseled briefs are prohibited except for undisputed background facts
* Clarification of contents of Volume 1 in multi volume set - ALL orders and rulings challenged on appeal, and nothing else
* Requirements of appellees excerpts in pro se cases are clarified must include everything that would have been required for opening brief plus what appellee is required to include
* Clarification of when complete trial transcripts must be included, and option to submit those in separate volumes at the end (before any sealed volumes)
* Clarification that cited or relevant documentary trial exhibits must be included in the excerpts, suggestions given as to where

New resources will be available, including a revised sample shell brief and new sample excerpts of record, on our website, along with an updated appellate practice guide and a new technical guide for working with PDFs, at https://www.ca9.uscourts.gov/content/view.php?pk_id=0000000858. New and revised FAQs regarding excerpts of record will also be available on our website at https://www.ca9.uscourts.gov/content/faq.php

RIP Justice Paul Coffee (1932-2020)

Today's DJ has an obit for 2/6's Justice Paul H. Coffee, 1932-2020: 2nd District Court of Appeal Justice loved the sea and hated typos.

• Paul H. Coffee, who served on the 2nd District Court of Appeal for 15 years, was known for living his non-courtroom life at sea, as well as for his hatred of typos, subtle sense of humor and integrity, colleagues said Friday. Coffee died Thursday at 88.
• Coffee was born on July 10, 1932. He grew up in Madera County, where his father, Everett L. Coffee, was a district attorney and a superior court judge. ... Coffee studied business at UC Berkeley and joined the Navy. He flew fighter planes in the 1950s, but never saw combat.
• In lieu of flowers, donations may be made to Our Lady of the Assumption Catholic Church, 3175 Telegraph Rd., Ventura, CA, 93003 or City of Hope Cancer Research Hospital, 1500, Duarte Rd., Duarte, CA, 91010

The MetNews has Retired Court of Appeal Justice Paul H. Coffee Dies and, from PJ Gilbert, A Colleague's Reflections on Justice Paul Coffee. Ventura County Star obit here.

Justice Coffee's oral history legacy project interview is here.

Appellate angle for The Liberator

On Veteran's Day, Netflix released a four-part WWII series called The Liberator. The protagonist is Felix Sparks, famous not only for a remarkable war record but also--for appellate purposes--his legal career, including as a Justice on the Colorado Supreme Court. This calls to mind California's own "Buck" Compton, from HBO's Band of Brothers and the 2d District Court of Appeal.

Body camera photo in opinion

Police officers wearing body cameras has been more and more common. This published opinion from 4/1 here (In re Edgerrin, 271 Cal.Rptr.3d 610) on page 11 makes clear that a there was a detention. Perhaps body cam shots will become more and more common in decisions. And nice color photos could be useful in many opinions.

Other points to like about this opinion include: (1) oversized footnote numbers, and (2)Justice Dato "takes the somewhat unusual step" of penning a concurrence to his own majority opinion "to add a few personal observations." 

Justice Kagan: 9th Cir. Justice

The latest list of Circuit Justice assignments is here and provides: "For the Ninth Circuit, Elena Kagan, Associate Justice"

SCOTUSBlog says this:

A circuit justice is primarily responsible for emergency requests (for example, an application to block an execution or to allow it to go forward) from the geographic area covered by his or her circuit, as well as more mundane matters, such as requests to extend filing deadlines. However, justices can and often do refer significant emergency requests to the full court – a role that has taken on increased importance in recent years with the sharp uptick in activity on the court’s “shadow docket.”

"Appeal or writ?" article

Appellate specialists Judy Posner and Gerry Serlin (of Benedon & Serlin) had an article the December 2019 issue of Advocate Magazine that CEB recently republished here: Pitfalls and Hazards WhenPerfecting a Civil Appeal

 

Harvey Saferstein RIP

SCAN is sad to report that Harvey Saferstein has died. Harvey was a bar-junkie extraordinaire, including serving as president of the State Bar and Chair of the Ninth Circuit Judicial Conference.

The MetNews has Former State Bar President Saferstein Dies -- Remembered as Outstanding Attorney Who Served Legal Community, Courts

Some case notes & a musical number!

Here's a nonpub that references the appellant's "poorly drafted" and "problematic" notice of appeal. Turns out the appeal from the judgment was a day late, and so gets dismissed. And the appeal from the order denying a new trial was dismissed because such orders aren't appealable. But the order denying JNOV is appealable and timely, so that gets through. But then the order is affirmed.

File under "that's helpful": And here's a nonpub decision that basically says, "no judgment means no appeal; but even if you fixed that problem and came back later on appeal from a judgment, you'd lose. So don't bother!" Will the pro per appellant get it or will he return?

See also an interesting 9th Cir. dubitante opinion noted here, which asserts "Our circuit’s immigration jurisprudence is a hot mess." (And it also references Meatloaf! See, appellate judges can be musical. Want more proof? See immediately below).

Too boring? Don't miss some federal judges from Texas singing a Covid-19-related Hamilton number here! (The Hon. Charles "Tres" Eskridge III is a Hamilton musical expert, and has SoCal connections having attended Pepperdine School of Law.) [h/t Gary Ostrick]

In other news, the California Academy of Appellate Lawyers admitted two new members last month, Brian Sutherland of Reed Smith in SF and Greg Ellis of Pasadena. Congrats!

Lifetime Achievement Award for the Chief

IALA's 2020 Supreme Court Night will be the presentation (via Zoom) of a Lifetime Achievement Award to Chief Justice Canti-Sakauye on Dec. 1 (6 to 7:30), co-presented with a bunch of other bar groups. (This program is free, but space is limited!) Details here.

9th Circuit 2019 Annual Report

The 9th Circuit's Annual Report is now available here!

Chief Judge Thomas's foreword asserts, "with our inventive case management techniques, we still made significant progress in reducing our pending caseload and case processing time. Indeed, over the past four years, we have reduced our median appellate case processing time by 28 percent."

• Unless otherwise noted, statistics in this report cover fiscal year 2019 ending September 30.
• The Ninth Circuit continued to be the nation’s busiest federal appellate court, accounting for 21 percent of all new appeals nationally.
• Of the new filings, about 28.4 percent of all new appeals in the Ninth Circuit involved immigration and other agency matters, while 44.4 percent of new filings were pro se cases (those involving at least one self represented litigant).
•  The court’s overall reversal rate was 9.3 percent, compared to a national average of 8.2 percent. The reversal rate was 11.3 percent for criminal cases; 18.4 percent for civil cases involving the federal government and 16.3 for non-government civil cases; and 5.3 percent for administrative 
• agency cases.
• In FY 2019, judicial panels produced 464 published opinions and 6,910 unpublished opinions. 
• in FY 2019, the median time interval from filing of a notice of appeal to final disposition was 10.8 months, down from 11.7 months in FY 2018 and 13 months in FY 2017. The time interval from the filing of a case in a lower court to a final disposition was 33.2 months
• Once an appeal was fully briefed, Ninth Circuit judges decide all types of cases fairly quickly. In FY 2019, just as in 2018, the median time interval for panel decisions was 1.2 months for a case in which oral argument was held and about six days for cases submitted on briefs.
• Of the 6,604 written opinions, excluding consolidations, issued by the court in FY 2019, 54.4 percent were authored by active circuit judges, 38.4 percent by senior judges, and 7.2 percent by visiting judges sitting by designation.

Notable SoCal-related obits include Judge Real (pg. 19) and Judge George Schiavelli (pg. 20).

SCOTUS Amicus Briefs Reach New Highs

 NLJ's Supreme Court Brief has So Many Friends: Amicus Briefs Reach New Highs, which reports on Arnold & Porter's appellate practice report, which concludes:

→ “In the 2019–20 term, amici curiae filed on average 16 briefs per case at the merits stage, an all-time high. Overall participation increased as well, with friends of the court filing briefs in 97 percent of [the 57] argued cases, for a total of 911 amicus briefs.”
→ “The justices cited briefs in 65 percent of cases—another record—relying on friends of the court for perspectives on government policies, history, religion, medicine, psychology, and even the financial implications of the court’s decisions.”

→ “Last term likewise saw a return of mega-cases for amicus participation. Cases involving hot-button issues like marriage equality and health care tend to generate the most briefs, though patent cases also spur significant amicus participation. Keeping with that trend, Bostock v. Clayton County, which held that Title VII’s ban on sex discrimination protects LGBT employees, topped the list in 2019–20. Bostock and its consolidated companion cases (Harris and Altitude Express) received 94 unique amicus filings.”

Today's DJ profile of S.D.Cal. Magistrate Judge Allison Goddard (titled Credibility Builder) talks about how a "call-out" in a footnote in a published opinion from 4/3 affected her and helped her later in her career.

And of note (h/t How Appealing) Rethinking Appellate Standards of Review for Video Evidence, by Hon. Pierre Bergeron (Ohio 1st Dist. Ct. App.), 56 Court Review 140.

The Chief on Complex Courts

At LACBA's Litigation Section's 2020 Complex Court Virtual Symposium (on Dec. 7, 3 p.m. to 7 p.m. via Zoom), Chief Justice Canitl-Sakauye will be presenting "reflections on the history of the complex courts and how we are dealing with today's challenges." Sign up here.

Yesterday's DJ had Justice Hoffstadt's piece titled WWLHD? (What would the Legislature have done?

Of late, the California Supreme Court has devoted a fair bit of its time to resolving ambiguities in several of the recently amended statutes aimed at criminal justice reform.

And yesterday's DJ also had a Moskovitz on Appeals column on The Respondent's Brief, which makes has the following suggestions:

• Focus on the standard of review 
• Include a statement of facts, but explain why you're not relying on the appellant's story, and keep it short and focused on the key points.
• Get a head start by drafting before the AOB arrives.

RIP Drew Days (1941-2020)

 The 40th Solicitor General of the United States has died: Drew Saunders Days III was SG from 1993-1996. Obit here.

Law360 has Courageous Civil Rights Atty, Ex-Solicitor General Dies

"Drew Days was an inspiration and mentor to my generation," Eric Holder, who served as attorney general under President Barack Obama, said in a statement shared on social media. "He was an incredibly talented lawyer, a gifted teacher and an unfailingly kind man. He made America better and more just."

Some federal appellate stuff

The 7th Circuit has announced it will stay remote through April: 

The United States Court of Appeals for the Seventh Circuit will continue to operate under the Continuity of Operations Plan activated on March 18, 2020. See order for further details. (http://www.ca7.uscourts.gov/news/COVID-19_order_through2021_April30.pdf) Pursuant to this order, all cases scheduled for oral argument through April 30, 2021, will be argued by counsel either telephonically or by video communications. The clerk's office will contact counsel with remote argument instructions for their specific case. The courtroom will remain closed to the public. Arguments will be livestreamed to YouTube (https://www.youtube.com/channel/UCWvXsHlWdsIJHy3R_znCUsA) and recordings will be posted on the court's web page.

Bloomberg Law has Biden’s Top SCOTUS Lawyer Should Be Woman, Court Watchers Say, about a possible female SG appointment. Justice Kruger's name is on the long list of possible candidates.

The ABA Journal has Biden has pledged to nominate a black female SCOTUS justice—who are the possibilities? Yes, Justice Kruger's name is on the list, of course!

Law360 has Many In Judiciary Frown On Lifetime Appointments

The National Judicial College released the informal poll of its alumni on Wednesday, finding that 60% of the roughly 700 judges surveyed are against lifetime appointments, while just 40% support them.

Appellate articles of note

Jake Dear, the Cal Supreme Court's Chief Supervising Attorney, has an article in today's DJ about An Extraordinary and Influential California Supreme Court Staff Attorney, which traces the storied career of Harold "Hal" Cohen, who "had no inkling that his one-year Tobriner clerkship would turn into a lifetime career with the court in San Francisco," working for Justices Tobriner, Kaus, Grodin, Arguelles, Kennard, Broussard, CJ George, and CJ Cantil-Sakauye. Hal announced he would retire this past July. "what he's given to the institution and to the law will live on -- not only in the 127 volumes of California Reports published while he worked for eight justices (and with 28 other justices of the Supreme Court during that same period) -- but also in the example he has set for all of us, and the standards to which those of us who remain, and those who will join the court staff in the future, aspire." A "full version of this article to be published in December in the California Supreme Court Historical Society's Review."

Tuesday's DJ had GMSR's Jeffrey Raskin's article 'Healthy lawyerly paranoia': Federal Appeal Deadlines, about the 9th Cir.'s opinion in Nutrition Distribution LLC v. IronMag Labs, LLC (9th Cir. Oct. 29, 2020), which addresses federal tolling motions.

Also noteworthy: Law Clerk Hiring Plan Extended -- The Judiciary’s Federal Law Clerk Hiring Pilot Plan, which makes the judicial clerkship hiring process more transparent and uniform, has been extended for two years after getting good reviews from both law school deans and judges. Law.com's story is here.

And CLA Litigation Section's November 2020 Litigation Update is available here.

Justice Jenkins articles

Today's DJ has Martin Jenkins confirmed to state Supreme Court

Jenkins, who is turning 67 on Thursday, will be the first openly gay justice on the court when he is sworn in sometime next month. ... A swearing-in date has not been set for Jenkins in December, but pro tem justices will serve during oral arguments that month

The Recorder has Martin Jenkins Confirmed to California Supreme Court

In a hearing frequently filled with applause, laughter and the occasional tear, the Commission on Judicial Appointments on Tuesday unanimously confirmed Martin “Marty” Jenkins to the California Supreme Court.

The L.A. Times has First openly gay justice confirmed to serve on the California Supreme Court

Jenkins, considered a moderate, will become the fifth Democratic appointee on the seven-member court. He has extensive judicial experience. Republican governors appointed him to state court positions, from the Alameda County Municipal Court to the 1st District San Francisco-based state Court of Appeal.

Law360's article is here.

 

Link to Jenkins CJA hearing

The hearing for Justice Jenkins should begin around 1p.m. today and you can watch it live here: https://jcc.granicus.com/player/event/1078

Witnesses in Support:

• Ms. Adrionne Beasley, Reverend & Attorney at Law (Ret.)
• Hon. William R. McGuiness, Administrative Presiding Justice (Ret.), Court of Appeal, First Appellate District, Division Three
• Hon. Thelton E. Henderson, Chief Judge Emeritus (Ret.), U.S.D.C., Northern District of California
• State Bar Commission on Judicial Nominees Evaluation: Mr. Aminder Singh, Commission Chair

See also Justice Martin J. Jenkins Confirmed to California Supreme Court

Slideshow here.

JNE says Jenkins EWQ

The Recorder reports Supreme Court Nominee Martin Jenkins Receives Top Rating From Bar Evaluators

• Citing praise for his’ “brilliant intellect, first-class temperament, and boundless humanity,” a state bar committee has concluded California Supreme Court nominee Martin Jenkins is “exceptionally well qualified” to serve as an associate justice.
• “Justice Jenkins embodies the qualities sought in a Supreme Court candidate: collegiality, writing ability, scholarship and distinction in the legal profession coupled with an unparalleled breadth of experience,” Aminder Singh, chair of the Commission on Judicial Nominees Evaluation, wrote in a letter to the conformation panel. “Moreover, his compassion, humility, lifelong commitment to public service, and passion for justice make him a most deserving and worthy addition to the state’s highest court”
• “He is a hard-working, ethical jurist who is also compassionate, caring and approaches his work and many achievements with humility,” Judge David Rubin of the San Diego County Superior Court wrote on behalf of the California Judges Association’s Lesbian, Gay, Bisexual and Transgender Judges of California committee.

What a difference an N makes...

 Law360 has Meet the Attys Arguing ACA's Fate at Supreme Court, which profiles several lawyers, starting off with California's Solicitor General Michael Mongan. (See here for the sketch artist's pic!)

But please don't confuse him with Michael Mogan, recently noted in a California Appellate Report blog post here for being sanctioned over $22K by a trial court in this published opinion here by 1/3. (No further sanctions were awarded on appeal.)

Biden by the numbers

Law.com presents By the Numbers: What Biden's Win Means for the Law and the Courts, which includes this segment of appellate note:

30: The estimated number for Democratic-appointed appeals judges eligible for senior status at the start of Biden’s term. Trump and McConnell have overseen the confirmation of 53 judges to the federal appeals courts, leading to 1 in every 3 circuit judges being a Trump nominee. The administration inherited a slate of vacancies after McConnell blocked dozens of judicial nominations toward the end of President Barack Obama’s second term, which allowed Trump to fill those seats.

There are two recent vacancies on the appeals courts: One on the U.S. Court of Appeals for the Seventh Circuit, to fill Justice Amy Coney Barrett’s seat, and another on the U.S. Court of Appeals for the First Circuit after the death of Judge Juan Torruella. Judge Joel Flaum, also on the Seventh Circuit, is set to take senior status on Nov. 30. It’s a near certainty that Trump would act to fill those seats before leaving office.

Even with a limited number of inherited vacancies, Biden would still have a chance to appoint judges to the appeals court. Russell Wheeler, a visiting fellow with the Brookings Institution who studies judicial confirmations, recently estimated that about 30 Democratic nominees on the appeals court are eligible for senior status, and inherit 25 to 40 district court vacancies. If those judges step down, the Biden White House would be able to fill those seats—but because they are Democratic appointees, Biden will have far less of a chance to reshape the appeals courts.

 Law360 has Biden Win May Lead to First Black Female Justice, which asserts:

Another contender for Biden's first Supreme Court nomination is 44-year-old California Supreme Court Associate Justice Leondra R. Kruger, a former U.S. Department of Justice official. Justice Kruger argued 12 cases in the U.S. Supreme Court as an assistant to the U.S. solicitor general between 2007 and 2013. She later became the deputy assistant attorney general for the Office of Legal Counsel. A Los Angeles-area native, Justice Kruger received her law degree from Yale Law School and went on to clerk for Judge David S. Tatel on the D.C. Circuit and Justice John Paul Stevens on the U.S. Supreme Court. She was appointed to the California Supreme Court in 2015 by then-Gov. Jerry Brown, a Democrat.

9th Wants Answers

 Bloomberg Law reports Ninth Circuit Demands Explanation from Lawyer Over Filings, which starts off like this:

A federal appeals court ordered an Arizona immigration lawyer to explain why it shouldn’t sanction him with a fine or disbarment for alleged ethics violations in almost 40 cases he filed with the court. Rafael Tirado has just under a month to resign from the Ninth Circuit bar or “show cause in writing” why he shouldn’t be disciplined for repeatedly violating court rules and orders and rules of professional conduct, the U.S. Court of Appeals for the Ninth Circuit said Nov. 4. The court said a number of his petitions raised concerns about “competence and candor,” also alleging that Tirado has mixed up cases on appeal.

See In re Tirado, 2020 BL 428481, 9th Cir., 20-80153, 11/4/20.

The OSC identifies problems including "lack of record citation," "reliance on boilerplate," "misrepresentations," and "a pattern of carelessness."

November news

How about some appellate stuff to take your mind off other pressing issues, this early November? The start of the month brings various appellate columns. PJ Gilbert's Under Submission column is 300 Years Ago, which (after an intro) reprints his first column (a classic) from June 9, 1988, about Supreme Court depublication, titled It Never Happened.

Exceptionally Appealing this month is You Are Not James Bond, covering a variety of annoying things lawyers do, such as citing to page 007 instead of just page 7, and ignoring or misapplying the rule requiring an asterisk before the name of lead appeal counsel per firm on the cover of a brief.

Moskovitz on Appeal is Word Counts, about how important and effective shorter briefs are. He suggests cutting irrelevant dates and lengthy discussions about nonbinding precedent.

The NLJ posted its 2020 Appellate Hot List.

On Nov. 18 (noon to one), ABTL-LA presents a webinar on Winning Remotely: Trial & Appellate Arguments, featuring 2/4's Justice Currey and GMSR's Robin Meadow. Details here.

Law360 ran Jim Lofton's 8 Tips for Effective Oral Advocacy in Virtual Court Hearings, which include: tightly construct your arguments; structure your opening and closing; practice and test; speak to the camera, not the screen; camera angle should be eye level or higher; don't read.

The Ninth Circuit has: Judge J. Clifford Wallace Celebrates 50 Years on the Bench

The Kaufman Appellate Fellowship

The DJ reports Buchalter launches appellate fellowship for new law graduates -- "The Kaufman Appellate Fellowship honors Buchalter’s appellate practice founder, former California Supreme Court Justice Marcus Kaufman, and is open to recent law school graduates or those who have just completed a judicial clerkship."

• The Kaufman Appellate Fellowship honors Buchalter's appellate practice founder, former California Supreme Court Justice Marcus Kaufman, and is open to recent law school graduates or those who have just completed a judicial clerkship. State Bar passage is anticipated but not required
• The firm will choose one fellow per year. The first started Monday: Lauren Jacobs, a recent Pepperdine Law School graduate and former extern for Justice Tricia A. Bigelow of the 2nd District Court of Appeal.
• The program aims to help fellows launch their appellate careers and possibly go on to pursue judicial clerkships or practice at Buchalter in the future. "There are a limited range of opportunities for lawyers, especially newer lawyers, who want to focus on appellate law. There's appellate clerkships, but most appellate departments do not hire directly out of law school," M.C. Sungaila [the fellowship's creator and firm's appellate practice group chair] explained. "Appellate boutiques, maybe some attorney general's offices will hire. But most places you need some kind of appellate experience before you can get hired even as an associate."

RIP Vic Chavez (1930-2020)

The DJ has an obit for LASC Judge Victor E. Chavez (LA Judge, 90, is remembered for his friendship and work ethic), "who presided over the unification of the courts in 1999." "One of the judge’s daughters is 2nd District Court of Appeal Justice Victoria Chavez. “I was lucky to have such a wonderful father as a child & even more fortunate to have been able to be part of the same legal community as an adult,” she said in an email Tuesday. “I will always be very proud of him.”"

The MetNews has several articles: Superior Court Judge Victor Chavez Dies, Judge Victor E. Chavez--a Biography, Reminiscences of Judge Victor Chavez, and Victor E. Chavez Remembered As Outstanding Jurist, Who Led the Superior Court During Consolidation